09 July 2012

How to Prosecute: (2) Learn to Deal with Defense Attorneys : A. Trust

One of the most important skills a new prosecutor has to learn is how to deal with defense attorneys. It's confusing to most new prosecutors - made especially so because most of them have not done defense work and do not understand what defense attorneys are doing. Consequently, many who have never been on the other side retreat behind the us versus them mentality where everything is black and white, all defense attorneys are evil incarnate, and the defense attorney probably deserves imprisonment as much as his client (same thing happens on the other side, but that's not today's topic). Personally, I find this an unhelpful attitude. However, if you are not going to retreat into such a childish worldview you have to establish certain guidelines for dealing with defense attorneys.

A. Rate defense attorneys on how much you can trust them, not how much you like them.

If you don't learn this lesson very quickly you will get burnt. Then you've learned the lesson whether you chose to or not. Just because the defense attorney has a likable personality and is someone you'd like to swap stories with over a couple beers does not make him trustworthy. Good attorneys are actors; they can smile at your face while telling you that lie which is going to get you fired if you believe it. Likewise, the fact that he's one of 'us' doesn't mean he's trustworthy either; the fact that he's a member at The Traditionary Club, that he's a Grand Presidentiary in the Order of the Golden Silence, or that he is the right prop on the Clydesdale Steeds Rugby Club may mean he's one of 'us', but so was Kim Philby. And, most definitely, the fact that someone is smoking hot and flirts with you does not mean she's trustworthy. Get a clue.

Now, if you're a sane person, how much you like a person probably has something to do with that person's trustworthiness. However, the converse does not necessarily follow. There will be all sorts of defense attorneys whom you will find trustworthy and not be good buddies with because they are much older or much younger than you, have different interests, or you just aren't similar types . Remember that the fact you aren't buddies with someone does not establish that person as untrustworthy.

How then do you determine trustworthiness? Well, one of the advantages of criminal law is that we tend to deal with the same attorneys over and over. It is truly a local enterprise. The people in your office will be able to give you a heads up on pretty much everyone who walks into the courthouse. This is how you will sort out the most untrustworthy. When everybody in the office starts regaling you with stories of how John Smith and Pete Greene have messed people over time and time again you'll know not to trust those individuals. After that it gets more difficult. Most of the time there's no easily discernible line in the sand. After you get past the defense attorneys who are absolutely untrustworthy you will find others who will be untrustworthy as to certain matters. A strange phenomenom which you'll run into every once in a while is the lawyer who will be straight as an arrow in everything else, but will lie like a dog in order to get a continuance. Usually, you'll get tipped about this lawyer by people in your office. Beyond that you are going to have to start making calls on your own. Start out being somewhat conservative and loosen up some over time. Eventually, no matter what you do, you will get burnt by some defense attorney whom you trusted too much while you were in a hurry or not paying enough attention. Don't let that sour your relations with other defense attorneys. Adjust your behavior toward that attorney accordingly and let others know about it.

Finally, the guy to least trust in the courtroom is the one who gets you aside and starts lecturing you. "Let me tell you how things are done in Pitcairn County." Everything out his mouth after that point is either meant to get you to do things he wants or is so blindingly obvious that you would know it after 3 days of practicing in any courtroom. And, he will expect you to give him credit on top of that for having explained the facts of life to you. Put a HUGE black checkmark next to that person's name and do what you think is the correct thing to do anyway. Be prepared if this guy starts telling the judge that he tried to explain the way things work to you. Generally, the answer should be something like, "Well, your Honor, I know Mr. Jones thinks he runs the courtroom, but personally, I like to let the guy in the black robe feel like he might overrule Mr. Jones." Adjust the tone and language to adapt to your particular judge.

1 comment:

Jim said...

Another source for evaluations of the defense attorney's trustworthiness and willingness to play fair is the cops, especially the experienced cops. Honestly -- an active cop may have seen the defense attorneys more and interacted with them more than many prosecutors. And they'll definitely know the ones that have screwed the cops over...