12 July 2012

How to Prosecute: (2) Learn to Deal with Defense Attorneys : D. Understand Defense Attorneys

D.  Understand the Defense Attorney's Job

Remember, the defense attorney's job is to best represent her client.  This might well involve things which you do not appreciate. Not telling you that the defendant has an identical twin before he shows up as a defense witness is good trial strategy (at least in places like Virginia where there is no witness list requirement), especially after you played hard ball and said the defendant could plead straight guilty and get sentenced by Judge Dredd or take a trial.  Making a legal argument, that you had no warning of, on the day of trial, after jeopardy has attached, is good trial strategy.  Interviewing prosecution witnesses, including the victim, is allowed and a competent defense attorney will try to do it (you can tell the witnesses they can refuse to talk to defense counsel, or refuse to talk with her unless you are present; you cannot tell them they should or must do these things). The defense attorney does not have to tell you that she knows the primary witness in your case, whom you are desperately seeking, has moved to Alabama; in fact, she has an obligation to keep her mouth shut as long as she does not know of any illegal activity involved in the witness' change of address. These are only a few of the defense techniques, stratagems, and obligations which you and your fellow prosecutors will get very mad about.

Be careful about confusing negotiation behavior and trial behavior. A lot of prosecutors have a hard time with this because the vast majority of cases are settled through negotiation which is a semi-cooperative process. It is in the interest of a negotiating defense attorney to point out the weaknesses in your case in order to get a little better deal for his client. This openness comes from an understanding on the defense attorney's part that she is negotiating from a very weak position and needs to try to chip away with any tool she has. However, the second that the decision is made to go to trial - whether that is before the attorney ever spoke to you or after months of negotiation - the incentives are entirely reversed. Defense counsel preparing for trial has exactly zero reasons to tell you her strategy or the weaknesses in your case. She is setting out to beat you and telling you these things would allow you to prepare and possibly to counteract the advantages she has found. Since even a defense attorney preparing for trial is usually defending from a weaker position, she will not give you anything unless required to by law.

So, John Smith, who was in your fraternity in college and graduated from the same law school you did and is someone you consider a friend, pulls a trick out of his hat in the middle of a jury trial and catches you flat-footed. It's entirely legal, but he never gave you clue one that it was coming. How do you deal with it after the trial is over (obviously you fight and scream and argue during the trial)?  Well, if you win you suck it up and drive on. You've got a great war story to tell for years and you can tweak John about thinking he could actually pull that off.  If you lose allow yourself a three day Mad On.  We attorneys are competitive by nature and when we lose we can be quite irrational about it.  Avoid John for the three days, whine to your fellow prosecutors, spend time combing through the code and case law "proving" beyond any shadow of a doubt that Judge Greene should never have allowed that evidence in, drink a few beers, and generally allow your maditude to run its course. At the end of three days get over it, suck it up, and drive on.  John did his job; you did yours. This time he won. He won't the next four times.


Anonymous said...

"this blog is amazing!"

Anonymous said...

There is not much that irritates me more than a prosecutor who tells witnesses they don't have to talk to the defense attorney or to a pro per who is self-representing. Most witness will read it: "don't talk to the defense attorney." The police already know they don't have to.

It is extremely difficult to prepare a defense when the witnesses and the police won't cooperate with the defense, especially with the tacit approval of the prosecutors and judges who let them get away with it.

I was in a situation one time where the government witnesses (police) were refusing to talk to me, and everyone would say, "on advice of County Counsel, I have been told not to talk." I told the DA that I was being told this. The DA called me a liar, so I secretly had my wife record the police telling me about the county counsel's (alleged) advice and turned the recording over as part of the defense obligation of discovery. Of course, the prosecutor threatened to prosecute my wife for "wiretapping" "if it ever happens again."

One cop said he wouldn't talk to me because it was a "conflict of interest" to talk to the defense. I even offered to record all interviews, and give the witnesses a copy before I left and let them make their own recording, and the police still refused. (There wasn't an imaginary conspiracy not to talk; there was a real live conspiracy.) I lost all remaining respect I had for police and prosecutors after that. I now have to force myself to not put all police and prosecutors (because there are some good ones) in the "corrupt corner."

Ken Lammers said...

I can't answer for all prosecutors, but I have never sought out witnesses to tell them about the rules for talking to defense attorneys. It's always in answer to someone calling and telling me that a defense attorney is trying to contact them.