The Dempsey Baby Assault

To begin with, Mark says this: "
This was a tough case for the DA to lose, because it seemed to be a very strong case and he already had it won, with the defendant under plea to a felony with jail time and probation. It certainly was a strong enough case that the defendant felt he needed to enter a plea. When the DA loses a case under these circumstances, it cuts the heart out of the police who work diligently to make the case, and it breaks faith with the family of the infant victim, who look to the DA for justice. It was just a tragic outcome all the way around."

A man was charged with violently touching the genitals of his girl friend's two-year old son, after confessing twice to an experienced and effective police detective. Based on a plea bargain proposed by the DA, the defendant pled guilty to felony assault conditioned on a sentence of local jail time and five years probation.

When the child's family aggressively demanded state prison time, the presiding County Court Judge refused to go along with the local jail sentence, and the deal fell apart. The DA took the case to trial.

The defendant was acquitted at a jury trial prosecuted by Mr. Hartnett himself.

The DA either did not realize the weaknesses of his case, and thus did not realize the value of what he had already achieved, or the trial was mishandled. His failure to communicate effectively with the child's family led them to picket at the courthouse

MARK SUBEN WOULD have evaluated the case at its very beginning, and determined what the evidence supported and what the weaknesses of that evidence might be at trial. Having made that professional analysis, in consultation with his investigating police officers and medical experts, he would have done one of two things:

(1) Concluded that there were problems with his evidence, and recommended the plea agreement that had already been reached, taking responsibility for the deal that had already been reached. In that event, Mark would also have communicated directly with the victim's family, to explain why this was an appropriate result under the circumstances, to seek their support for the deal, which probably would have resulted in the judge's approval.
OR
(2) Concluded that the problems with his evidence could be fixed, thoroughly prepared his case and won it at trial.