Sunday, April 13, 2008

The Prosecutor Translation

Mark. Mark. Mark. Mark. Mark. You were so nice the day after the election, and now you've hauled off and written this crap.

Now, I've grown accustomed to your article comments when you, Steve Gustitis and that Scott Greenfield dude start applauding yourselves as Defense Attorneys like you were from the League of Extraordinary Gentleman, but come on, who appointed you the Gate Keeper to who and who is not going to translate well from the job of prosecutor?

Now, granted, you hedged your bets and said Kelly might end up being a good defense attorney, and then you added:but give ‘em all a few years of proving that their hearts are in the right place as defense lawyers before you even think about trusting them with your freedom.

Isn't that a bit of a Catch-22 for the poor ex-prosecutor?

Now, you clarify your position in your comments that you aren't threatened by the business competition because there are plenty of cases to go around. I agree with that. Most prosecutors (like allegedly myself) don't know doodly-squat about the Federal system, and are pretty much restricted to having a good base of knowledge in the State courts. You, on the other hand, have spent a significant amount of your career, um, fighting the Feds (and, on occasion, the Fashion Police).

But when you say that a criminal defendant can only be well-served by a "true believer", and thus a new former-prosecutor just won't be as good, I think you may be out of your mind.

I've always felt that extremism in any field is foolish and frightening. The Radical Right scares the pee-pee out of me every bit as much as the Radical Left.

The same applies to prosecutors and defense attorneys.

Any prosecutor that believes that "everybody charged is guilty" is as foolish as the defense attorney who believes that every client they have is factually innocent. If you ask me, neither is going to be that swell of an advocate when it comes to trial time.

That type of zeal leads to tunnel-vision, and tunnel-vision leads to mistakes. Sometimes enormous mistakes. For a prosecutor who makes the "facts fit his ideas", the potential for injustice is obvious.

But how about the "true believer" defense attorney who tells his client: "I don't care if you have three videotaped confessions, and the murder was caught on videotape, and the State is only offering you 10 years. If you tell me you didn't do it, then I say, let's tee it up!"

I would suggest to you that a person charged with a crime is best served by an intelligent, well-spoken, hard-working pragmatist. One who can go in and assess the case from both the defense side and the State's side, and offer good advice. If I got charged with a serious crime, I would want somebody that I knew wasn't going to bullshit me, even if I was bullshitting them!

True Believers start thinking of themselves as bulletproof, and that's not good for anybody.

If I ever find myself in trouble with the law, give me a good realist who knows how to fight over someone who thinks that their righteous indignation will carry the day.

(NOTE: As an aside, check out this post by Harry Lime for a great write up on Kelly Siegler. She's clearly the James Bond of prosecuting.)


Ron in Houston said...

You and Mark are mirror images of one another. You bleed prosecutor and Mark bleeds defense attorney.

I understand his post about Kelley. It doesn't take away from her skills as a lawyer. There are a lot of lawyers that only do what they're doing for money or prestige.

I admire both of you guys because if you're going to do something, do it with all you've got.

anonymous c said...

Spot on, per usual, AHCL.

I was with pro.v in laughing out loud at the zeal with which Bennett rushed over and created a Chron i.d. just to pooh pooh the notion that Kelly would kick arse as a defense lawyer.

That true believer crap is just that…crap. The law is the law is the law.

If I were in trouble and had to choose between a “true believer” zealot with an anti-government agenda versus someone reasoned and rational who knows both sides of things and can, therefore, anticipate virtually every ADA move, I’d clearly go with the latter. Who wouldn’t?

Clearly, this situation is not the ideal and I’m quite sure that there aren’t many upper-echelon ADAs cheering about the thought of becoming defense lawyers, but the thought of wiping the floor with either Lykos or Bradford’s ADAs is probably a secretly guilty pleasure for some. I personally find the idea delicious and can’t wait to see them in action.

As for the truly morally repugnant criminals (molesters and the like), well, those can just be tossed over to “fight the feds” Mark and his “League of Extraordinary Gentleman”. They’ll always take ‘em.

Mark Bennett said...


Sometimes, as a defense lawyer, you've got to fight for (factually) guilty people to go free. Just between us, that's usually what you're fighting for. Some ex-prosecutors get that and make good defense lawyers, some don't. How much would it suck to be accused of a crime, and to have a lawyer who thought that just because you had done something wrong you should plead guilty and be punished by the system?

One day you're saying that Kelly should be DA because she's a true believer; do you think the same rule doesn't apply to the other side? And if the answer is "yes", do you think that only because you are contemplating becoming a criminal defense lawyer?

I don't think you and I really disagree on anything here except how long a person has to be out of the office before potential clients can know that he no longer believes that it's "wrong to let guilty people go free," as Pro.V writes. Old habits die hard. Or, as Kelly says, "we're not going to change who we are."

A true believer believes his client's bullshit less than you believe the cops'. I don't have to believe my client is factually innocent in order to do everything in court that I would do if he were. What makes him a true believer? He believes that the client has the right to tell his story and to make the cops tell theirs, that it should be exceedingly difficult for the government to convict someone, that the presumption of innocence means that even the wrongdoer is actually innocent until proven guilty, and that the wrongdoer going free doesn't do any harm to the fabric of the universe.

In other words, he believes in his role. It may appear to you that he believes his client is factually innocent -- he may not talk derogatorily about his clients (as some do) behind their backs, he may not practice "client control", he may not let you try to talk his clients into a deal -- but he's just playing his role and making you play yours.

I've never tried anything that didn't need trying. There was one felony case in state court in which I didn't beat the rec; that was an ASAC that had to be tried. When I've erred in my trial / plea advice to clients, it's been in the other direction. I don't regret ever encouraging a client to try a case; I regret encouraging many of them to plead.

Anyone hiring a wet-behind-the-ears criminal defense lawyer, whether that lawyer is a former longtime prosecutor or a new lawyer, is gambling. Who can tell whether that lawyer is going to make the correct tough call when it comes to trying a case. When I started practicing criminal defense law, I had to convince people to take that gamble, and I made a lot of mistakes along the way. Anyone who leaves the office and goes into defense practice is (unless they have a cushy job waiting) going to have to do the same.

Anonymous said...

Please, por favor, do NOT turn these blogs into pissing sessions between you and Mark.

Then we will look elsewhere for editorial comments.

jigmeister said...

I agree with Mark that there is a learning curve with anything new. I didn't practice defense law long enough to have learned very much. However, I think that an ex-DA that has tried just about everything is certainly miles ahead of the average defense attorney without much trial experience. One thing that all of us do when preparing a trial is attempt to figure out every defensive move and then figure out the countermove. Having a good idea of what a prosecutor is going to do (and by the way, knowing what he/she has) gives the ex-DA insights that a non-ex would'nt have.

I do think ex-DA's ought to stay out of congress.

A good trial attorney is a good trial attorney regardless of what side. That doesn't necessarily make you a good defense attorney in the non trial aspects.

But I wouldn't bet against Kelly if thats what she decides to do and I would certainly want her on my team if AHCL came after me.

Murray Newman said...

Anon 8:17,
It's not a pissing contest. Consider it "Point/Counterpoint". I'm still waiting for my opportunity to say "Mark, you ignorant . . ."

I have to give Mark credit, that I think our conversations via the blog have been beneficial to me and the way I see things. It may get a bit barbed at times, but I enjoy the arguments.

Nobody ever learned anything by closing their minds to at least hearing out the other side.

Kese said...

I agree with some elements of Mark's point. Just because you were a great prosecutor doesn't mean you'll be a great defense attorney. There is a learning curve.

Can it be done? I'll simply let the example of Rusty Hardin make my point.

Would I put my money (and my freedom) on Kelley. You bet. She may not be schooled on the nuances of the defense side of the courtroom, but she knows the law, and would give me everything she's got. Attitude and knowledge go a long way. Not all the way mind you, but it definitely beats someone's half-arsed ignorant attempts.

My two cents as a non-legal observer.

Stephen Gustitis said...

If you are going to slam me, at least give me a link back to my blog.

Steve Gustitis

Murray Newman said...

Oh Steve,
Don't be so sensitive. That was teasing, not slamming.

But you are correct that I should have linked to you. I fixed that within the article, and I added a link in my blog roll.

Fair enough?

How are things in Brazos County?