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Justice scale found in prosecutor's office, too

---Every charging decision is weighed

Mike Heine/The Week

(Published August 8, 2007, 3:52 p.m.)

The decisions a prosecutor makes aren't always easy.

Right now, Walworth County District Attorney Phil Koss is in a tighter spot than usual.

Michelle Hamilton, the mother of young woman killed in a one-car accident, originally said she didn't want the suspected driver charged with homicide by intoxicated use of a motor vehicle.

Mark A. Friesema, 21, is facing two of the felony charges for causing the death of Courtney C. Hamilton, 20, and her unborn baby.

Friesema is suspected of driving drunk and then colliding into a tree at South Shore Drive and Bailey Road in Delavan Township the early morning of April 29. Courtney Hamilton died at the scene.

Michelle Hamilton said her daughter made a mistake by getting in a car with someone who was allegedly drunk.

"I think he's genuine and he's sorry. I've seen it in his eyes when he apologized," Michele Hamilton told The Janesville Gazette earlier.

Michelle has changed her stance somewhat. She says she understands why charges were filed, but said she doesn't want to see Friesema punished severely. He faces more than 50 years in prison if convicted.

"I understand he has to take responsibility for his options, but I don't want him to go to prison or jail. He's too young for that," Michelle said.

Those decisions are ultimately left up to a judge. But Friesema's case is just one example of why making charging decisions is difficult.

"We seriously have to consider the victim's viewpoint," Koss said, referring to Michelle Hamilton's mindset. "We have to counter-balance that against the rights of the public to be safe from that kind of crime that the defendant has allegedly committed."

The situations in this case are not unique, Koss said. Surviving relatives have often shared similar feelings. Sometimes lesser charges are issued.

"I think the public's interest in deterring drunk drivers is greater, but we still reflect wishes in some sort of reduced penalty," Koss said.

Deciding on what charges to issue vary case to case, Koss said.

Among a victim's viewpoint, Koss said he takes into account:

* The degree of harm caused

* The severity of the offense

* The public's view of the offense

* Provability

* The view of law enforcement

* An offender's prior criminal record

* Rationale for committing the offense

"With the criminal justice system, the nuances are not always well known to people," Koss said. "We very commonly hear people say, 'I'm not going to press charges.' That's not up to them.

"They might not know the ramifications. It might mean, 'I don't want them to go to prison,' or 'I don't want them to get the max (sentence),' or 'I don't want any record of this.'"

In the more serious cases-those involving physical or emotional harm to someone- Koss will often meet with the victim or their family before making a decision about charges.

"One of the first questions I try and ask victims is, 'What do you want to see happen? In a perfect world, what do you want to see happen.' It might not always happen that way, but it lets me know what they want to see happen."

Defense attorney Jim Martin, who served two years as an assistant district prosecutor under Koss, agreed that a victim's desires should be a factor in determining the course of a case, whether it's at the beginning or at the end.

"Every charging decision a prosecutor makes should be difficult because of all the factors they need to take into account," Martin said.

"There is a tremendous amount of power being a prosecutor. They should be evaluating not only the charges, but the ramifications on the victim and the defendant. There are a number of factors a DA has to consider and a judge needs to consider. If everyone is doing their job-the DA, the defense attorney and the judge-then all the factors should be considered in a resolution."

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