Arrow: “Lone Gunmen”

This episode of Arrow, entitled “Lone Gunmen”, aired back in October, but there’s some really good stuff in it. The main legal issue has to do with Oliver Queen’s little sister, Thea, getting picked up by the police for breaking into a store, while drunk, and trying on some outfits with her friends.

Early in the episode, Oliver comes home to find that his sister, seventeen year-old Thea, has been picked up by the police for breaking and entering, plus underage consumption of alcohol. This is not her first run-in with the law either. Their mother, Moira, has apparently paid off the store owner to convince him not to press charges, leaving Thea off the hook. Is this plausible?

Actually, yes. There are several things going on here. The first has to do with the idea of “pressing charges”. As we’ve mentioned a few times before, it is commonly thought it is the alleged victim that makes the decision about whether to file criminal charges against a defendant. This is not the case. It is the prosecutor that makes this decision. With regard to state law, the office of prosecutor is usually an elected office, typically on the county level, and called “District Attorney” or “County Prosecutor,” or something else along those lines. Whether or not the alleged victim wants charges to be brought is a factor in the decision, but not a deciding one. It is very common for an alleged victim to demand that charges be brought, only for the prosecutor to take one look at the case and realize that there’s no case to be made or that it wouldn’t be a good use of resources. But it also happens in reverse: the prosecutor sees that they’ve got a slam-dunk felony charge, but the alleged victim, for a wide variety of reasons, doesn’t want charges to be filed. These reasons usually stem from some relationship with the defendant, e.g., parent, spouse*, criminal associate, etc. If the prosecutor thinks he can get a conviction without the cooperation of the alleged victim, he or she may decide to go for it.

*This is actually a very serious issue in domestic battery cases. As the only admissible evidence in such cases is often the testimony of the battered spouse, a victim that doesn’t want to testify can make prosecuting abusers very difficult.

But the other thing is something that doesn’t get portrayed on TV quite as much, and this has to do with the role that criminal defense attorneys play in these situations. Everyone knows about plea bargains. If charges are filed, a good criminal defense attorney can negotiate with the prosecutor to hammer out some kind of deal wherein the defendant pleads guilty to some lesser charge or the prosecutor stipulates to a suspended sentence. Essentially, some deal that gets the prosecutor a conviction, minimizes the impact to the defendant, and spares everyone the hell that is a criminal trial. But not as many people are familiar with the concept of “charge bargaining.” Plea bargaining is all well and good, but a truly savvy defense attorney, if he or she is brought into the situation early enough, will start talking to the prosecutor before charges are even brought. The goal here is to convince the prosecutor to file lesser charges than might otherwise have been appropriate, or to not file charges at all.

Part of these negotiations will involve convincing the prosecutor either that this is going to be hard case to win, or that it’s just not worth their time. In this case, we’ve got a very rich family, so any charges will result in an instant media circus. On the one hand, a hotshot prosecutor might try to use this to make a name for themselves. But on the other hand, burglary (also called “breaking and entering”) isn’t the most serious charge in the book. It’s still a felony, not some penny-ante misdemeanor, but we’re not talking a DUI or a vehicular homicide, nor possession with intent or something like that. Nobody got hurt. And underage drinking isn’t even a felony. A prosecutor might think long and hard about deciding to subject themselves and their department to extended media scrutiny for charges as mundane as these against a defendant who still attracts some measure of public sympathy.

So when the Queens’ lawyer can tell the prosecutor that the shop owner has been compensated for his damages and trouble, the prosecutor might well decide to make a judgment call and sit this one out. That doesn’t justify Thea’s subsequent truancy, but one assumes she attends some kind of exclusive private school that isn’t going to rat her out. The one thing we don’t see that we probably should for this to work simply as presented is the Queen’s lawyer. The police aren’t going to do anything but turn this case over to the prosecutor. It’s not really their call to make. And the prosecutor isn’t likely to talk directly to the Queens. That’s what defense attorneys are for. So that little conference in the living room would probably have needed to be with Moira, Thea, and Thea’s lawyer, not the cops.

We’ll look at additional episodes in the coming weeks. Stay tuned!