THE assistant district attorney (ADA) and the defense lawyer approached side-bar - the area immediately next to the bench. This was a status conference, 10 days before trial, at which counsel would give the judge final witness lists and bring up any ``housekeeping'' matters. ``Your Honor,'' the ADA began, ``although the government is certainly prepared to try this case as scheduled, I think I ought to tell you that counsel and I have been talking.''
He meant that he and his opponent had been trying to work out a resolution short of trial: a negotiated plea.
The judge was not sure whether the ADA was subtly seeking to encourage judicial participation in the bargaining process or merely alerting the court to the possibility of a plea.
If the first, the judge was not interested. The second, advance notice of early, short-of-trial disposition expedited case scheduling.
``Is there anything the court can do?'' he asked. Although the attorneys might interpret this as an expression of willingness to join the bargaining, the judge was reasonably sure they would take it as a detached way of asking for a prediction of the most likely result.
``Not really. Counsel and I have pretty much come to an agreement. The problem is the family.''
The ADA did not mean that the parents of the young man who had been killed were deliberately causing trouble. He was suggesting that they were troubled.
``They feel very strongly that what the defendant did deserves the severest punishment. At this point, a manslaughter plea, even a plea to second-degree murder, just won't satisfy them. Frankly, although I think they're running the risk of an acquittal, the government will not go to a plea unless they're satisfied.''
In a civil case, his position would be routine. No matter how despairingly an attorney views a case, once he has expressed his views he must follow orders: A client, even a client whose lawyer will be paid only if he wins the case, always has a right to insist that the claim (so long as it is not frivolous) proceed to trial.
A district attorney, however, does not have a client. Victims and their families may properly look on him as their champion; he must never see himself that way. Because he serves everyone, he can represent no one.
Yet the pressure on a district attorney is almost irresistible. In a system that must, to avoid sliding ineluctably into despotism, constantly monitor and protect the right of the presumed innocent defendant to a fair trial, no one except the prosecutor even talks to the victim or the family. A relationship based on dependency invariably develops.
Beyond that, an elected district attorney cannot afford to alienate any voter.
Sensitivity to the victim/client/constituent extends also to those cases in which it is the prosecutor who is more inclined to pursue the defendant.
The tension is particularly poignant in drunken-driving homicides, where frequently the driver and the passenger-victim were friends. If as so often happens, the two are young people, the families may also be close.
The law gives the district attorney absolute discretion as to pressing a case. Yet what happens when the dead fianc'ee's parents ask the prosecutor not to seek incarceration? ``He's never going to forgive himself,'' they say. ``What good would it do to put him in jail?''
``We have an obligation to respect the family's wishes,'' is how even the toughest district attorney is likely to justify an otherwise unmerited leniency.
Listening to the troubled ADA at side-bar, the judge wondered whether deference to one family's wishes would enhance justice - or evaporate it.
``We've still got more than a week to trial,'' he said. ``Let's see how things work out.''
Hiller B. Zobel sits on the Massachusetts Superior Court.