An anonymous Travis county assistant DA has a blog called “DA Confidential ” that commonly has insightful commentary from a prosecutor’s perspective. The latest posting is a hilarious video made with “Xtranormal” , a tool that creates animated web videos with computer-generated voices speaking whatever script the author has created.
The video explores themes seen too often at the courthouse. Every criminal defender would be well advised to watch the short video and ask himself whether he has ever fallen victim to the common pitfalls depicted in the animation:
- Defense lawyer’s woeful unfamiliarity with the police report’s version of the case : despite the fact that prosecutor has a caseload of hundreds of cases, prosecutor is far more familiar with the provable facts in the offense report;
- Defense lawyer’s too-obviously “flexible” version of the facts : in response to being called on each of his factual misstatements, the defense lawyer apologizes for his faulty memory then launches into another equally improbable version of the facts which is equally disprovable;
- Defense lawyer’s lack of any reasonable suggestion for disposition of the case : begins with request for dismissal and has no response to prosecutor’s obvious, generous offer of probated sentence.
One of the best advantage defense attorneys should have is an intimate familiarity with the facts of their cases . Defense attorneys have been hired and paid good money to handle a matter for their clients. Even if she is court-appointed, a defender’s job is to speak for her client. Given the built-in advantage to the defender (in open-file discovery jurisdictions) of knowing both the Government’s and the Defendant’s versions of the facts, a defender must begin her representation by attempting to fully flesh out the case against her client. It is impossible to defend against the unknown accusation.
The criminal defender’s job is to humanize and individualize the client’s case. Prosecutors have caseloads in the hundreds and have to learn to quickly identify and categorize fact patterns, case weaknesses and defense arguments. Most defenders have caseloads in the dozens; even the busiest defender should have far fewer cases than the least-busy prosecutor. Without a close familiarity with the operative facts, the defender is at a huge disadvantage in representing her client.
Another advantage easily built but once lost, lost forever is the defender’s reputation as a truth-teller. I certainly know well-established and successful defense lawyers (and prosecutors) who have reputations for being liars and cheaters. There are distinct disadvantages to having such a reputation: limitations on access to discovery, prosecutors’ never taking the lawyer’s word for basic factual representations, general suspicion and distrust in interpersonal dealings and negotiations. These are the most obvious practical reasons for a criminal defender to preserve his reputation as a truth-teller, but there are a myriad of other moral and less tangible reasons as well.
It is important to remember that a criminal defense lawyer always has the option not to tell the prosecutor anything about the client’s professed version of the facts. It is almost always advisable to test that version of the facts against known, quantifiable facts like independent witness statements, hard forensic evidence, and other corroborating facts, prior to pitching the client’s version of the facts to the prosecutor. If a defender tries to sell an obviously false story to the prosecutor, the prosecutor will think either that she is a liar, that the client is lying to her, or that she is so lazy that she didn’t bother to check the DA’s file before speaking about the facts of the case.
Every lawyer should have an objective in mind when negotiating their cases with a prosecutor. I have heard prosecutors complain about certain defense lawyers that their only suggested outcome in every case they handle is to ask over and over for dismissal. Let’s face it–90%+ of cases are disposed with plea bargains of some type, and most dismissals result from evidentiary problems, police overreaching or misconduct, or extremely exemplary behavior on the part of the client. If the evidence clearly establishes the client’s guilt, and there is no other reason for dismissal, it’s going to be a hard sell and the defense lawyer will seem like he is not a good-faith negotiator if his only proposal is dismissal. Prosecutors are often open to creative alternatives, but the defender is tasked with being creative in seeking the best possible resolution of a difficult situation for the client–that’s the central challenge for the good criminal defender.