Prosecutor offers deal in exchange for waiver of receipt of discovery; defense attorney loses it in court.

Yesterday I pretty much lost it in court. On the record. Here's what happened . . .

Two years ago, JG, a sixteen year old juvenile, FTA'd at his trial on a charge of robbery (211). A couple of weeks ago, JG, now eighteen, resurfaced, and yesterday I appeared for him at a pretrial hearing. (JG is in custody at juvenile hall.) At the pretrial hearing, Deputy DA Mr. N. offers a "grand theft person" (California Penal Code 487c) as a lesser included offense of the robbery. (The robbery, by the way, would count as a strike, because JG was sixteen at the time of the offense.) Great offer, right? Well here's the part that pissed me off. I liked the offer, but wanted to confirm that the victim, who had apparently moved out of state, was still willing to testify. Mr. N. announced that if he had to "do the work" of providing me with a current address of the victim, then the offer would go away. I argued on the record that the offer should remain open until I receive the victim's address, on the grounds that making an offer contingent upon a waiver of receipt of discovery would be illegal. Mr. N.'s position was that any conditions on an offer are fine, an offer can be withdrawn at any time, and if I really needed the victim's address so badly, then I could have my own investigator go find it.
Judge S's opinion was that Mr. N. was free to withdraw his offer if I insisted on receiving the victim's address and, after all, I did have the "most recent" address of the victim---an address which everyone knows is no longer good. After a little more of my on the record ranting and raving, Judge S did concede that under In re Littlefield, the DDA did have to get the address himself, although the day of trial would be fine for disclosure.

All I could do at that point was set the case for trial without a time waiver. My suspicion is that Mr. N. knows the victim is neither able nor willing to testify at trial. Knowing this, Mr. N tried to get a conviction the only way he could---by trickery. We shall see.

I'd like to know what people think about this issue. Is it ethical, or even permissible, for a DDA to make an offer contingent upon a waiver of discovery? Is it malpractice for a defense attorney to accept an offer without having received essential discovery? Can an offer with such a condition be enforced without the condition?

That was just the first time I pissed off that judge yesterday. Later that afternoon I got to piss him off even more during a juvenile gang trial. Look for a post titled "Bullshit Gang Expert Testimony Part 146" at the conclusion of that trial in a day or two.