Sunday, March 8, 2009

Collegiality, Diplomacy, and the Aspiring Yodas

A week or so ago, I sat down and had drinks with my friend, Pat McCann, and a prosecutor-who-shall-remain-nameless. There was nothing unusual about the fact that I was having a beer with Pat, other than we were having the drinks over at Picazo rather than Char for some strange reason. During our conversation, as we often do, the talk turned to the overall state of affairs at the Criminal Justice System, and Pat made the comment that over the past year, he felt that there had been an increase in the "collegiality" between prosecutors and defense attorneys around the CJC.

I agreed with him, and we talked about the different factors that had contributed to that, which included Rosenthal's departure, the subsequent vulnerability of the HCDA office, Mark Bennett's and my respective blogs, and the passing of some of our friends from the Defense Bar.

Now, before some of you start yelling "how can there be collegiality since prosecutors and defense attorneys have opposite purposes?", I would argue that the common purpose is achieving Justice within the System. We may not always agree with what True Justice is, but both sides are working toward that goal. Prosecutors, contrary to popular belief, are not trying to lock up every person and throw away the key. Defense attorneys, by contrast, are not trying to help absolve the criminal population of ever accepting responsibility.

We work towards Justice -- all of us, in our own way. The collegiality exists, and I've never been more aware of it than when I was welcomed to the Defense Bar earlier this year.

Of course on both sides of the Bar, there are always going to be examples of those who have somehow abandoned the idea of collegiality and replaced it with bravado, arrogance, and often, rudeness. Some prosecutors do it. Some defense attorneys do it. Hell, even some judges do it, I suppose.

It has been my experience that those members of the legal profession often exhibit rude behavior in their younger and less-experienced years. When you've gone to trial and you've both won and lost many tough cases, you don't really have the need for bravado. You are comfortable in what you've accomplished and you don't really feel the need to go around puffing or treating your opposition like crap just to make yourself feel better.

I would like to think that by the end of my career as a prosecutor that I was known for treating everyone with respect, but I know that in my younger years as a prosecutor I could be quite a tool. I remember the day I realized what a tool I was being.

I was giving James Dyer (whom I still fondly refer to as "Chewbacca") a mean-spirited and rude speech. I don't remember what it was about or why I felt my rant was necessary, but I remember what he said to me. He looked at me, sadly, and said "I don't know what I did to make you so mad at me, but whatever it was, I'm sorry."

I felt like a bully and jerk (which I was). There wasn't any need for it, and in his understated way, Mr. Dyer pointed that out to me. If there was ever any "turning point" in my career and who I wanted to be as a prosecutor or a criminal lawyer, in general, that's the moment I can point to.

Prosecutors are normally the ones who get blasted for their rudeness and their arrogance. Nobody has been either rude nor arrogant to me since I left the Office, at least not yet, but I have heard a bit of puffing here and there. But other defense attorneys assure me that it will be coming soon.

Perhaps they are right.

But I think it is worth asking the question of whether or not both sides of the Bar are often contributing to the lack of collegiality. Although James Dyer responded diplomatically and effectively to me many years ago, I wonder if all of today's Defense Attorneys are as interested in such an approach today. Or will there still be some who would prefer to throw diplomacy by the wayside and go on the attack.

Although he is my good friend, even Mark Bennett has taken some potshots at me and my ability to "think like a criminal defense attorney". (NOTE: Don't get me started on that Rage Judicata guy who doesn't even practice criminal law but seems to think he was sent to the Blawgosphere to re-invent the the CJC. ) Even today, in his latest post, Bennett is attacking a former judge for daring to be a defense attorney. Mark notes:

A prosecutor is an advocate; a former prosecutor who spent his prosecutorial career screwing the accused has that fact to fall back on in justification. A judge is not an advocate; a former judge who spent her judicial career as another prosecutor in a black robe needs a change of heart before she is ready to defend the accused.

I guess my question is, who exactly appointed Mark to be the Yoda of the defense bar? Does being President of HCCLA really make him the Gatekeeper for those who are or are not worthy of being a true member of the Defense Bar? Or, is Mark, in his attempt to be provocative, just being a tool (like I was being to Mr. Dyer)? The things that he (and folks like Mr. Judicata) post on the web have questioned my ability to do my job based on what I write.

But isn't it a bit questionable that they've never seen me practice?

My clients (whose opinions actually matter) have registered no complaints with me thus far.

I'm going to keep on writing the way I write, and that includes saying that Harris County prosecutors are the best in the Nation. If you are being prosecuted by some of the best, you are definitely going to need some of the best to defend you, too. (See how that works?)

The vast majority of both the prosecutors and the defense attorneys I know will continue to be kind, professional, and diplomatic to me as they always have been.

Others, will continue to do something different, I suppose.

As for me, I think I may try to be a little bit more like James Dyer.

16 comments:

Anonymous said...

Nails yet again.

My only complaint with your blog is that you don't do it more often.

I completely agree with your comments about Yoda.

Anonymous said...

I'm going to keep on writing the way I write, and that includes saying that Harris County prosecutors are the best in the Nation.

But how do you KNOW? :)

Rage Judicata said...

I don't criticize you for the way you write, but rather that it seems like you're still an apologist for the CJC. While I have problems with both past and present practices at the CJC, you seem to wish things were the way they used to be. The difference between us is that I think things will improve, whereas you think they have gotten worse. Not trying to speak for you, that's just the difference between our views on the CJC, from what I can tell.

I don't think for a second I'll change a thing there. Nor will you, and I've always said that you'll have a tough row to hoe because of your blog here--I think people will coe to target you the more you appear on behalf of your clients. But, although you and I are critical of the CJC for different reasons, at least you put your money where your mouth is. Something Bennett cannot say.

His shot at you was needless. As much of an ass as people think I am, it seems to me that he has been increasingly ass-like himself. Between the time he stated that I am not a criminal lawyer and it showing at a time before he and I were at odds (although he was terribly wrong about why he thought so) or you not thinking like a defense lawyer (which, let's face it, ain't hard to do), or him telling several people aroung the blogosphere to quit wasting "good material" that he would use in a post much more effectively, the guy is fairly full of it. This is made doubly worse by his chest-thumping and threatening prosecutors with grievances, only to cave the first time it comes up, or today about Keller being a murderer on Grits' blog, yet doing nothing about it himself, says that he's far moer concerned with what he sounds like on the web than what he actually does in his practice.

A coward dies a thousand times before his death, Mr. Bennet. The valiant taste of death but once. For once, do what you say you're going to do.

Murray, you were fortunate to have your epiphany early on in your practice. Many don't. And that's not limited to either side of the criminal or defense bars. Believe it or not, I get along with all but a very few plaintiff's lawyers, and always have. But the ones that have done something to me, or bent the rules, or been less than honest, I work their asses off in every case I have against them. I'm not an ass about it, I just do ten times more work in those cases.

Anyway, keep on keeping on. Like I've said for some time, I'm not trying to keep anyone from saying anything. To the contrary, I refuse to moderate comments on my blog and would never go so far as to report posters as spam if they disagree with me. And believe me, there are plenty of anonymous assholes takin shots at me, but they're free to do so.

Anonymous said...

What a slap in the face to the fine and upstanding Mr. Yoda. Comparing poor Yoda to Mark "the know it all" Bennett (aka KIA) is quite the insult. Yoda is interesting, exhibits wisdom, and is much more attractive. You'll be hearing from his lawyers.

jigmeister said...

Your right Murray. I think there comes a time where you realize that you have nothing to prove and that it pays more to be cordial with people. This is especially true after you make chief I think, because you don't have to compete with everyone else anymore. It never lessened the job stress for me, but made the job more pleasant and allowed me to make many more friends. Friends, that by the way, I still maintain on both sides of the fence.

I would certainly encourage more cordiality and mutual respect amongst the CJ bar.

Anonymous said...

Mark thinks the only "real" criminal defense lawyers are those who think the same way he thinks. Many members of the criminal defense bar said Rusty Hardin could never be a "rea" criminal defense lawyer, including Dicky. And if there is a better criminal defense lawyer than Rusty, I haven't seen him/her.

Anonymous said...

I'm not a fan of Mark Bennett. AT ALL. That being said, sometimes he questions things just for the sake of questioning them, in my opinion. He's a true devil's advocate, because surely he doesn't believe in 100% of the stuff he writes. This is not a bad thing, even if it pisses people off sometimes. Hell, it pisses me off! Let him stir the pot, and try not to let the stench bother you too much.

You're a great attorney Murray because you are smart, you know what you are doing and you work hard. That will be all your clients could ever ask for. You don't need Mark's stamp of approval, or anyone else's for that matter. Keep on keepin on.

BTW, did Bennett just write that HCDA prosecutors were some of the best advocates in the nation? Wow, thanks dude! Wait, what was I saying about stamps of approval...

Alison Grinter said...

Common courtesy and respect between prosecutors and defense attorneys makes everyone's life more pleasant. I like a polite work environment as much as the next guy, and practicing primarily in Dallas County, I can say that respect and decency are well preserved in the Frank Crowley Courthouse.
I do think, however, that it's important to maintain that power struggle. I've been to courts (and I'm not ashamed to single out Denton County here for example) where the defense bar routinely rolls over in the name of collegiality, and the DAs are allowed to run the court. Sure, judges can be a big problem, but you know there's something wrong when the DAs walk into the building every morning just assuming they'll win by forfeit.
And it may be splitting hairs, but I don't think my job is to work toward justice. I think my job is to work within the constructs of a just system in order to obtain for my client the best outcome possible. And I agree with you that that doesn't oblige me to be rude, or forgive me when I am (we're only human, after all), but it does oblige me to unflinchingly insist that every one of the system's protections of my client are afforded to him. And I won't be forced into feeling bad for doing just that.
I agree with you fully about collegiality, but I just wanted to point out that our job is not to get along, it's to annoy the system.

Anonymous said...

Mark Bennett is merely an average attorney who is grossly ashamed of his irrelevance, nothing more.
It is painfully obvious that Bennett is haunted by his overall mediocrity at the courthouse. Thus his blog is a tool to assuage this lackluster reality by attempting to bolster his wanting persona to mask his failings.
If the self anointed grandeur wasn't so amusing I'd pity the fool.

Anonymous said...

Actually, those criticizing Mark's skills as a lawyer have probably never met him. He is clearly one of the better CD lawyers in Harris County. I've worked cases with him representing co-counsel in both State and Federal courts, and his work has never been lacking in any respect.

Seems to me that some have alot of sour grapes here, which they are busily and bitterly pressing into whines.

A Harris County Lawyer said...

I told Mark in court today that I would defend his honor, so let me say this:

Now that he has cut off his ponytail, I believe that he is, at a minimum, AS good looking as Yoda.

All kidding aside here, although I disagree with Mark loudly and often, there is no disputing that he is a very intelligent and very dedicated defense attorney. I know that what he says is often times offensive to some, but he is still the guy I would call in the middle of the night in an emergency.

On top of being an excellent attorney, he is an even better friend. We can dog on each other on our respective blogs, and still be friends the next day.

And that, folks, is COLLEGIALITY!

Anonymous said...

Very intelligent does not equal knows better than everyone else.

Mark ain't no Pat McCann.

Joel Rosenberg said...

FWIW, I don't see the problem. In my own social circle, the quantum of discussion is, pretty clearly, the argument.

Anonymous said...

By saying Harris county district attorneys are the best in the nation Murray is displaying the arrogance he mentioned prosecutors are known for earlier in the post. Ironic huh?

It's not even true though. How about prosecutors in major cities like Miami who have to deal with judges who are NOT mostly former prosecutors (unlike in Harris county)? Or have to prosecute laws with sentences that are actually fair (unlike in Texas where having 5 grams of cocaine and a few plastic bags can get you life in prison on your first offense). Or have to deal with a full time public defenders office instead of a bunch of court appointed hacks who can't get enough retained business?

In reality, Murray is just another hick who thinks everything is better in Texas. Get real dude. Your hick brethren hung you out to dry because you disagreed with them. What's so great about a place full of people like that?

Joel Rosenberg said...

Methinks that some people don't quite get the whole argument-by-exaggeration thing. Only somebody who has made a careful, in-depth study of all counties across the United States and/or a complete idiot would aver that the lawyers in a given county are the best in the nation. Somebody who thinks that, say, the Harris County criminal bar (both prosecutors and defenders) often do a pretty good job might well use the instant (he said, pretending to talk like a lawyer) figure of speech to argue that.

Anonymous said...

anon 9:28,

First, our appointed lawyers are not hacks. They are excellent defense attorney's who advocate passionately for their clients. I deal with them daily, and a lot of them have been practicing law longer than I've been alive.

Second, all the other hicks I know at the office love Murray. We did not oust our hick brother. :) Have you read any other blog entries here? Perhaps other blogs? The office is not exactly a united force right now.