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We need case law federal or state that deals with the courts ordering a district attorney to honor his agreement.

Atlanta, GA |

n 2012 the State agreed to continue a case until after the first of the year allowing the defendant the time to refund money to alleged victims and that the case would be dismissed after doing so. Second , after the defendant refunded the money the state refused to dismiss the indictment stating agreement was never made. Though the transcripts from the earlier hearing clearly show that there was an agreement. Previous counsel for the defendant was ordered to write a court order stipulating to the agreement. But he failed to do so. previous counsel also failed to inform the defendant of any specific date to have the refunds paid. Is Motion to Compel proper and or a 1983 action ? What constitutional rights could have been violated? Thank You

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Attorney answers 2

Best Answer

In most cases it is a bad idea for a defendant to be his own lawyer, and the more complex the situation, the more true that is. If you have been charged, you need a lawyer, and should hire one locally. The lawyer will know the ins and outs of local procedure to try to accomplish your goals.

In answer to your specific questions, the judge and prosecutor have absolute immunity from being sued. The lawyer, not being a public official, is not subject to a 1983 lawsuit, but might be the subject of a state court malpractice lawsuit. I should point out that a person who can be shown as having committed fraud is unlikely to do well in any lawsuit. It is possible that to sue the lawyer you might have to give up the attorney-client privilege as to that lawyer.

It would be appropriate to file a motion in the criminal case, claiming that there was a deal, the prosecutor violated the deal, and/or the attorney committed ineffective assistance of counsel by failing to prepare and get signed the court order as directed. You could request the remedy of a dismissal, or compelling the prosecutor to comply, or other remedy that might be available under local law or procedure.

A leading US Supreme Court case on the prosecutor's duty to comply with his deals is Santobello v. New York, 404 U.S. 257 (1971).

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NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.