Trust Me, I’m from the Government

I tried my best not to get sucked into this blogversation, but I’m weak.  So here it goes.

Mark Bennett, the Texas Tornado, prodded by a query by prosecutorial blog Western Justice, contrasted with an old post by PD turned private turned PD again, Blonde Justice, has decided to address the WJ’s question,  “why would someone wait until trial to show the prosecutor exculpatory information like that?” 



Tactically, the criminal defense lawyer has to decide whether, and when, to reveal his NLSes [Nasty Little Surprises] to maximum effect. Some NLSes might be bombshells that will change the outcome of a trial (like the “complainant” swearing that the crime didn’t happen), and some might be less earthshaking revelations that might affect the outcome of a trial. The former might, if revealed before trial, convince the trustworthy prosecutor to dismiss outright even what he believed to be a whale. The latter might shift the tone of negotiations and convince him to offer a more favorable plea agreement, or dismiss the case that he had doubts about before.


The Defense should (as The Blonde illustrates) not reveal either kind of NLS to an untrustworthy prosecutor.


But this would have been too simple had my other brother Gideon not decided to join in.  But he did, in a well-titled post called “Do you gamble?”  And while Bennett and Blonde prefer the surprise attack, Gideon is more cautious:


When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?

I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.

Everyone agrees that these generalizations are subject to the particular circumstances of the case, ranging from the trustworthiness of the prosecutor to the strength of the exculpatory evidence.  But that said, ceteris parabus, what to do?

Gideon’s point, that if something goes awry in the execution of the “Perry Mason Moment,” the whole thing blows up in the defense’s face, is well taken.  I’ve seen far too many trials where lawyers thought they had things under control, only to have some unanticipated intervening event blow what they thought was a sweet gig.  If things go south, and somehow the big bang evidence loses some of its big bang, the result could be disaster for the defense.

On the other hand, Bennett’s and Blonde’s point that some prosecutors can’t be trusted to do the right thing, and if you show them your hand, will do whatever they can to undermine or circumvent your evidence, is similarly true.  In deference to Westy’s point, since it’s up to the prosecutor to make the call whether to toss the case in light of new evidence, it puts an awful lot of power and trust in the hands of someone with adverse interests and a significantly different perspective.  Most defense lawyers have been burned by prosecutors who are trustworthy, but in their own eyes only.

Addressing Bennett’s dichotomy of big bang exculpatory evidence from little bang stuff, the former being the sort that will blow the case out of the water, and the latter being helpful but not quite overwhelming, it seems clear that giving the prosecution a heads-up on little bang stuff is tantamount to malpractice.  If it’s not of the sort that will convince a prosecutor to toss a case, then there is no choice but to keep it to yourself.  Anything else would be foolish.

As to the big bang stuff, my reaction depends on whether the defense has it completely locked up or whether the prosecution can find a way to spoil your moment if it knows about it ahead of time.  I agree with Gideon that if it can effectively used before trial, without risking the defendant’s case at trial, then there is an obligation to try and avoid the trial.  After all, even when you think you’ve got the big bang locked up, trials are still trials, and nobody ever knows how they play out.

Key to all of this is a real assessment of the strength of your evidence, even more so than your trust of the prosecutor.  A trustworthy prosecutor still has an obligation to his job to circumvent your proof if he believes it susceptible to challenge.  He may be trustworthy, but don’t assume that he won’t do his job if he still believes the defendant guilty.  Remember, the prosecutor sees the glass half empty, no matter how you see the glass.

On the other hand, if the big bang evidence is as strong as you believe it to be, and of the sort that will compel a dismissal, then there should be little risk to revealing it to even the most untrustworthy prosecutor.  He may refuse to dismiss, and may try to circumvent the evidence at trial, but that’s where your honest assessment of its strength comes in.  If its that strong, it should be immune from prosecutorial shenanigans.  If it isn’t immune, it may not be nearly as big a bombshell as you think.

All in all, it’s a balancing act, taking into account all of the factors that have already been discussed.  But no matter how tempting the “Perry Mason Moment,” and no matter how cool it is to watch the prosecutor fall on the floor, sobbing and writhing, as his case crumbles, our duty is to the defendant first, and we must put our desire to cause prosecutorial paroxysms aside in the best interests of the defense.






15 comments on “Trust Me, I’m from the Government

  1. Lee

    I’m in agreement. My first consideration in this decision is always: if I divulge early and no dismissal follows, how much will I be weakened at trial by having given the DA the early heads up? Usually, the question of the strength of the evidence goes hand-in-hand. If its the kind of exculpatory evidence they can’t do anything about even if they know it is coming, they’re far more likely to dismiss. Judges where I work are far too prone to exclude evidence favorable to the defense at a pre-trial in limine motion, so I generally error on the side of sneak attack, particularly if its something a state witness (cop or other) could lie their way around.

  2. Ken

    An excellent practical example of a prosecutor misusing exculpatory evidence comes from the Duke Lacrosse case, in which police arrested an alibi witness proffered by the defense (a cab driver) based on an old and bogus charge. (He was acquitted at trial).

  3. SHG

    True, and shows the extremes to which an untrustworthy prosecutor might go.  No self-righteous prosecutor should ever say it can’t happen.  It did.

  4. Mark Bennett

    Coupla things.

    In the Sovereign Nation, we have real plea bargaining: “I’ll offer 8.” “My guy’ll take 2.” And back and forth, sometimes, until an agreement is reached. If the prosecutor is stuck at 3 and the client is stuck at 2, the revelation of the non-bombshell can sometimes close the deal.

    Two bites at the apple would be nice, but there is no piece of evidence that an unethical prosecutor can’t undermine if he knows about it before trial.

    All else being equal, and even without taking into account my strategic theory, I’ll take my chances with a jury acquitting rather than a prosecutor dismissing.

  5. Kathleen

    In a case I know of in which a friend of mine was the defense attorney, he with an investigator interviewed the main witness in a child sex abuse case, an aunt. We have devoted ADAs on SAB cases. I believe child was 8 or 9 y/o and had credibility problems and so the aunt’s testimony was crucial to the prosecution. The interview produced exculpatory statements that what the child told her was not what the aunt described to the grand jury and amounted to insufficiency for the elements of the charges. The defense disclosed it to the prosecutor, twitchy as Dave Fiegle would call her.

    So the prosecutor threatened the witness with an indictment of perjury plus the substantive charges under Penal Law s.20.00 accessory after the fact. The aunt jumped back over the wall. Evaluating what he faced on rollng the dice, the dft. took the plea. Not a good plea.

  6. Windypundit

    Have you read prosecutor Tom McKenna’s reponse to this issue?

    He doesn’t like surprises: “I’m going to remember if you’re the kind of lawyer that would rather go for the public “gotcha” than work with me to find out the truth about the case.”

  7. SHG

    I hadn’t before (actually I’ve never even heard of the blog until your link), but I have now.  Thanks Mark.

    This smells like the grist for another post about another prosecutor who believes the criminal justice system revolves around him personally.  More on this tomorrow.

  8. SHG

    That was also pretty common in  spousal assault cases, post reconciliation.  The wife would recant and the prosecutor would threaten her with prosecution if she didn’t cooperate in the case against the husband.

  9. Kathleen

    Oh yes. But for perjury. Not for the substantive crime against the victim and alleged by her, with a dual role as the witness, now recanting.

  10. SHG

    So I have!  I forgot all about that.  I took a spin around his site and saw that I wasn’t on his blogroll, even though the rest of usual suspects are.  Philistine.

  11. Lee

    I’m in agreement. My first consideration in this decision is always: if I divulge early and no dismissal follows, how much will I be weakened at trial by having given the DA the early heads up? Usually, the question of the strength of the evidence goes hand-in-hand. If its the kind of exculpatory evidence they can’t do anything about even if they know it is coming, they’re far more likely to dismiss. Judges where I work are far too prone to exclude evidence favorable to the defense at a pre-trial in limine motion, so I generally error on the side of sneak attack, particularly if its something a state witness (cop or other) could lie their way around.

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