Monday, January 19, 2009

Pragmatism & The True Believer

During my time with the District Attorney's Office, I can honestly say that the vast, vast majority of all defense attorneys that I had the pleasure of dealing with were hardworking, ethical, and rational groups of professionals. Unlike on shows like Law and Order or other silly legal dramas, their wasn't seething animosity. Cases were discussed rationally. Search issues discussed. Witness testimony debated. Negotiations were entered into. If cases were set for trial, they were set for trial because either a) a good defense attorney felt that it was in their client's best interest; or b) their client wouldn't listen to their advice.

But on occasion, prosecutors dealt with members of the Defense Bar that we labeled as "True Believers" -- a handful of defense attorneys who knew no such thing as a guilty client.

It didn't matter if their client had been caught on video, identified by a pack of nuns, and gave four audio-taped confessions. Dammit, their client was not guilty. It was all part of a broad State conspiracy of planted evidence and coerced confessions.

There was no entering into plea negotiations, because it was dismissal or nothing. More often than not, these cases went to trial with disastrous results for the clients. Although having a True Believer for a defense attorney was probably heartwarming prior to a verdict being read, in the end, the client wasn't served.

Now before anybody starts doing any commentating in the comments section, I'm not going to name any names of any particular defense attorney that fits under this particular description. And I ask you not to either. Those of us who practice in and around the CJC know the handful of folks I'm talking about, and those names don't need to be broadcast here. I will say that the few I dealt with were always on retained and not appointed cases.

The reason I bring this up now is that the comments in my post last week on Keeper Cases indicated that there are some prosecutors that fall under the category of "True Believers", as well.

One of my commenters pointed out:

Has it occurred to you that there might be a very good reason that there shouldn't be "keeper cases?" You will find out the reason when you eventually run across a prosecutor who is so emotionally invested with the victims and the case that he or she has lost the ability to reason and be objective about the case.


You can't be objective and do what you need to do when you are emotionally attached to your client or family, and neither can prosecutors.

I thought a lot about what that Anonymous commenter said, and I ultimately found that I agreed with him or her in some regards. Although I still believe that the policy of banning "Keeper Cases" by the Lykos Administration is a bad idea, I do agree that when an attorney becomes so attached to a Defendant or a Victim (or victim's family) that they can't rationally evaluate the strength and weaknesses of their case, they are not serving anyone -- especially not those that they are hoping to.

But there is a fine line between being a "True Believer" and a dedicated advocate of one's side.

The idea that a prosecutor who believes strongly in his case and tries it with all of his or her might is "dangerous" is silly. The prosecutor who believes so blindly in their case that they are overlooking relevant evidence is obviously an idiot, but the one who works hard to prove their case is just being a good prosecutor in my opinion.

The same applies to the Defense. The defense attorney who busts his butt to make sure his client has the best damn representation he can provide is somebody I admire. And I admired that type of defense attorney when I was a prosecutor, too.

I've always considered myself to be a pragmatist and my assessments of cases when I was a prosecutor was usually extremely multi-faceted. I tried to take into account all relevant factors from the severity of the crime, the provability of a case, and the background of all involved. I tried to look at cases through the eyes of both a prosecutor and a defense attorney. Doing so helped me immensely in preparing for trial (and usually helped me avoid those Nasty Little Surprises that Mark Bennett talks about).

I guess the point I'm trying to make here is that there is nothing wrong with believing in your case strongly from either the defense side or the prosecution side, as long as you always have logic and reason as your ultimate guiding light. A defense attorney would (and should) be highly offended if someone suggested to them that their heart shouldn't be in their case. Why should a prosecutor be any less offended when the same suggestion is made to them?

Every client that I've handled thus far has gotten my full level of attention and devotion to them and their cases. I'm scouring offense reports for problems with probable cause and search warrants. I'm searching for every issue that can be used to my client's advantage.

And I've genuinely liked my clients and I've wanted to do a good job for them.

I've been accused of still sounding like a prosecutor in my writings. Perhaps that is what my writings sound like, but at the end of the day I'm a pragmatist and a rational thinker.

In the end, I know if I was in trouble with the law, I'd want to have a critical thinker whose mind will be racing on how to help me effectively and knows the ins and outs of the legal system. In my opinion, that's going to do a lot more good than having a person represent me who is a True Believer.


Anonymous said...

Your analysis of Keeper cases is fundamentally obvious and well stated. I completely agree that the broad brush banning of them is a ridiculous policy.
BTW, congratulations on your successful transition to private practice and I admire your optimism.

Anonymous said...

I agree with your emphasis on pragmatism, but I think you intentionally craft a very narrow defintion of "true believer" in order to describe a type of lawyer that everyone will agree is bad. Sure, there are irrational true believers, but (and without naming names) there are alo several attorneys on both sides of the aisle that many would call true believers. These true believers are good and successful even though everyone wishes they'd tone down their true believer-ness.

Is that because no one likes it when someone else can live by their ideals and we reflexively tear them down, or is it that because their ideals are misguided? What's toxic is when the true believers on one side try to suggest that the ideals of the true believers on the other are less than worthy. But what are you gonna' do? They're true believers.

Anonymous said...

And what about when those "true believers" you criticize happen to win? Any time a prosecutor comes across a defense attorney who is convinced his client is not guilty (or not convictable),and the prosecutor doesn't agree, he thinks the defense attorney is just being obstinate.

When the defense attorney wins a few of those cases, then the prosecutors start to see that JUST MAYBE the defense attorney should be taken seriously when he digs his heels in. Our office has won several of those sorts of cases -- and just this week got a dismissal on a case that the prosecutor had been insisting was indefensible, right up until she filed the dismissal. And, she filed it without any notice, and didn't show her face when it was presented. I didn't know it was dismissed until I approached about the schedule for jury selection!

One reason defense attorneys run into this belief that we are just obstinate is that we very often do not show our hand -- the reasons we think we're going to win. If we did, then a prosecutor might work around them before trial, intimidate our witnesses, etc. Not knowing why we are so confident, they just think we're being obstinate. The only way you break down their skepticism is to go to court and win a few times, so that they know you are dangerous. Then, when you dig your heels in, they believe you are doing so with a reason.

Joel Rosenberg said...

I do think that, much of the time, you still sound like a (recovering) prosecutor, in part because you seem to see prosecutor and defense attorney as the same side of a different coin; that's very common among prosecutors, but not common (although not completely unknown) among defense attorneys.

(Is it true? Different issue.)

I'm not sure that that's a bad thing, mind you, and I'm pretty confident that it's not an important thing -- your clients are unlikely to care if you sound like a prosecutor on your blog; they're more likely to care about the results that you get for them in the court system, probably -- but it's still there, from this remove.

(I know all about this stuff; I've seen several episodes of each flavor of Law & Order.)

That said -- and I mean this gently, albeit not overly kindly -- you do capitalize like a cop. I think all those years of typing JOHN SMITH or whatever in uppercase so he can only get off if he redeems his straw man makes a lot of guys on both trades forget whatever you may have learned about the use of a caps key.

But I digress.

Rage Judicata said...

You're confusion "true believer" with "idiot".

I'm a true believer in the Constitution and that the state has to make its case before locking people up. And that both sides should play fair. I recognize that most, by far, criminal defendants are actually guilty and should be punished.

But I believe that a lying prosecutor (or cop, or investigator) is far more dangerous to our liberty than a reckless defense attorney.

Anonymous said...

good post for a change

Scott C. Pope said...

"One reason defense attorneys run into this belief that we are just obstinate is that we very often do not show our hand -- the reasons we think we're going to win. "

Uhhh then why the heck would a prosecutor want to dismiss it until you do show your hand? How can you act indignant about prosecutors diggin in their heels when they don't have the information you have?

Anonymous said...

Arthur Seaton,

[Uhhh then why the heck would a prosecutor want to dismiss it until you do show your hand?]

That's simple. The burden of proof is on the State. It is not an even playing field. Clearly, if the Defense has to show its hand to get the State to dismiss the case then the State was not able to prove its case beyond a reasonable doubt in the first place. I hope you are not an attorney or have never been summoned for jury duty.

The reason a true believer prosecutor is more dangerous than a defense attorney is equally as simple. The prosecutor has the apparatus of the State behind him/her. If a Defendant can not make bond, the State can prolong a Defendant's stay in jail on a case that it knows can not be proved just because. No one can make the State file a nolle.

With some of the new judges who have taken the bench the State is not getting its way with regard to bonds, etc. Some of the assumptions that were accepted by the previous judges without question are being challenged. And it's clear the State has been so used to getting its way that some ADAs are unprepared to defend the State's position.

Anonymous said...

Arthur Seaton:
Exactly.....but make sure to check out the veracity of the defense attorney's hand before considering dismissal--some have been known to have an ace from another deck up their sleeve.

Anonymous said...

Why would any defense attorney tip their hand? So the prosecutor can contact your witnesses and start threatening and bullying them? Telling them that they will go to jail, lose their kids, etc.? I learned years ago that the minute you tip your hand, defense witnesses start suddenly changing their mind after a little conversation with representatives of the State, who engage in conduct for which a defense attorney would be arrested. I actually had a prosecutor question me about why I had told the State's witnesses to not come to court and was prepared to file charges on me. Of course, I had done no such thing, and the tape recording of their phone call to me saved my ass. The best practice is to not tell the prosecutor a damn thing, then beat them at trial so bad that the next time you tell them their case sucks, they listen.

Jason said...

This reminded me of a story I read years ago. I tried digging through google archives, but it would take all year. I recall a local defense attorney who truly believed all of his clients were decent, misunderstood people. He would have them at his house and let them stay when they had no place to go. After having several possessions stolen from him and being used by these guys he lost faith in all humanity and committed suicide. It really was a tragic story. A man who wanted to see the good in people, just sadly he chose the wrong people to look for the good in.

Murray Newman said...

Anon 4:12,
I think last year, Mark and I debated about when to share information and when to hold it for trial. It's a good question and I think it all comes down to two things:
1) the credibility of the "surprise" and 2) the level of trust between the defense attorney and prosecutor.
I think we can all agree that sometimes a Defendant will get somebody with absolutely Zero Credibility to come and vouch for them in some way, shape or form. A prosecutor wouldn't be doing their job if they didn't look hard into the veracity of the "vouching". What you describe is outright coercion and shouldn't be done, obviously.
But sometimes the sharing of a credible piece of evidence can avoid a trial and get a case dismissed, thus relieving all kinds of stress for your client.

Scott C. Pope said...

"The burden of proof is on the State. It is not an even playing field. Clearly, if the Defense has to show its hand to get the State to dismiss the case then the State was not able to prove its case beyond a reasonable doubt in the first place. "

Balderdash. If the State has its case ready to go and thinks it can win, and the defense has some sort of "surprise" in store, how the hell can the State ever know that?

Joel Rosenberg said...

It was an interesting discussion, sure, but I think the most interesting part of it (to this outsider, that is) was in Mark's notion (although I don't remember him putting it quite this way) of the holding back of information as analogous to the semi-bluff in poker.

Anonymous said...

arthur seaton:
your calm, succinct logic is impressive.the average joe sees your detractors for what they are and they impress only themselves.

Mark Bennett said...

Today I revealed an NLS to a prosecutor. I would not have revealed it to many prosecutors, but I felt comfortable that this particular person could be trusted to deal with it fairly instead of trying to find a way around it. I believed that because of a history of fair dealing between me (and others in the criminal defense bar) and this prosecutor.

I'm a true believer: whether they did it or not, all of my clients are innocent . . . until, through trial or plea, the State proves them guilty. It's not just my clients, though; I believe the same of Murray's clients.

Anonymous said...

Who killed "Baby Grace"? Any ideas? Did the mean lying po po coerce poor baby mama?