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Wednesday, August 06, 2014
THE DIFFERENCE BETWEEN BEING A PROSECUTOR & A DEFENSE LAWYER
THE CAPTAIN REPORTS:
WHAT'S THE DIFFERENCE BETWEEN BEING A PROSECUTOR & BEING A DEFENSE LAWYER? .....
Houston Oilers football coach Bum Phillips, famously once said about legendary Hall of Fame Coach Don Shula, "He can take his'n and beat your'n and take your'n and beat his'n".
We all learned in Moot Court to always be ready to argue both sides of the case. A lawyer that knows his opponent's case better than his opponent, is a successful lawyer.
But, sometimes, when you argue the facts, and that doesn't work, and you argue the law, and that doesn't work either, then what's left for the defense lawyer?
KNOW YOUR CLIENT. As a young CLI, it was the first thing we were taught. Go over to the jail and interview your client. Get to know him/her better than they know themselves.
I always took it one step further. When I spoke with the ASA or the Judge in Court, I knew my client so well, that both were convinced I had known my client for many years. And I would do it without notes.
Recently, a Houston criminal defense lawyer, (and former prosecutor) was asked to write on his Blog about what the difference was between being a prosecutor and being a defense lawyer. You can read his Blog by going here:
Here is how he answered the question:
An Important Breakfast
In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar. We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.
"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.
"I've been a defense attorney for about five minutes," I replied. "I don't really think I've got the depth of experience on this side to do that blog post quite yet."
Over the past five years, I've revisited that conversation frequently. There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor. It could even be humorous. I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it. Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.
In the back of my mind, however, I did have an idea for a blog post. It focused on one simple theme.
That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.
I'm not going to give any details of my client's case. They aren't really relevant -- other than to say he was charged with a low level misdemeanor. My client was a blue collar guy. He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.
A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast. Unfortunately, I had to be back in Harris County for a setting, and declined.
This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.
We had met two weeks ago in my office and we had gone over every last detail of his case. I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal. In the terms of factual evidence, it wasn't a very debatable point. Despite my clear advice, he said he wanted to think about it. I understood.
We talked on the phone a week ago and he said that he was still mulling it over. He said he would call me back later in the week and let me know what his decision was. I told him that was fine.
We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.
So this morning, we met for breakfast at a greasy spoon restaurant. I got there before he did and ordered a coffee. He arrived a few minutes later. We talked briefly about the pros and cons of his case and I gave him my advice. He listened intently, but he didn't really say much.
There was an uncomfortable silence while we ate our food. I didn't want to press him for an answer as to whether or not he wanted to take the prosecutors plea offer. I knew he was processing the information. Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence. So, I made small talk with him. The more small talk I made, the more I realized how very little I knew about my client's personal life.
"You know," I said. "I don't even know if you are married."
"I was," he said. I was about to make a joke about how many times I "was" married, but for some reason, I refrained. I'm glad I didn't say anything.
"We were married for 29 years," he continued, "but she died of breast cancer in 2009."
"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.
"I broke my back in two places in an accident the next year," he said. "I haven't really been able to move right since." He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month. He wasn't trying to elicit sympathy from me. He was just telling me about himself.
He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.
"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"
At the end of breakfast, I picked up the check. He thanked me for breakfast, but more importantly for meeting him for breakfast. When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day. As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.
When we got to court, I talked to the prosecutor. Objectively, she was reasonable. She said that she would agree to a "time served" offer, but she was going to raise the fine significantly. I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer. She wasn't all that interested in what he had going on in his life.
And the case was resolved.
So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?
What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole. Generally, their judgment of a person is based on the crime they are charged with. I don't say that in an accusatory manner. That was how I operated as a prosecutor when I held that position.
As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history. We get to know our clients.
Or at least we should.
I should have done a better job of getting to know my client long before "plea or trial" day. I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day. I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.
I could have done a better job of letting them know that my client was not defined by the crime he was charged with.
So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act. A Prosecutor has more of a tendency to look at the act alleged and then judge the person.
That's the difference. Everything else flows from that.
What do you think are the differences between being a prosecutor and being a defense lawyer? Is it the job of the prosecutor to know your client? If you are a practicing criminal defense lawyer and you don't spend the time to learn as much as possible about your client, and then use what you've learned during plea negotiations, then you are stealing from your client with every fee you take.
CAPTAIN OUT ..........