The Ex-Prosecutor's Epiphany
More than a year and a half have passed since then, and today, Robert has written his prosecutorial swan song. Prompted by the efforts of the Texas Tornado, Houston criminal defense lawyer Mark Bennett, who is also the current President of the Harris County Criminal Bar Association, as well as the well-deserved front runner for best criminal blawg in the ABA Blawg 100 (have you voted yet?), Robert's insight offers much to the many men and women whose careers in criminal law began in the prosecutor's office and wound their way to the defense side.
The longer I defend cases the more I realize that the two skill sets (prosecuting and defending criminal cases) are mutually exclusive. Prosecution can make one a better criminal attorney in general. Creating a better defense lawyer requires defense experience, inter alia.
Does my prosecution experience help my current clients? Yes, but not as much as more defense work would have.
This is a revelation that many former prosecutors would prefer be deep-sixed. Like a dirty little secret, they know that the public is of the belief that a former prosecutor offers them a benefit, an edge, that they wouldn't obtain otherwise. When former prosecutors go out on their own, they heavily promote this status to exploit this public belief. The benefits are two-fold; it's a belief that will convince potential clients that the newly-minted criminal defense lawyer has credibility, and it's the only thing that have to promote.
I've posted in the past about the ethics of former prosecutors exploiting this status to get clients. That being an ex-prosecutor is a fact, part of one's professional background, is undeniable. That this fact somehow provides clients with an edge is deceptive and misleading. Still, it's a pervasive marketing tool.
The problem is that it's a lie. With experience under his belt, Robert proves that he's made the full transition from being a former prosecutor to being a criminal defense lawyer by his recognition of the significant distinction. Robert goes through a fairly extensive list of these differences here, and they are definitely worth reading. They may not be exactly the same as another ex-prosecutor's experience, but some of the points are universal.
Just yesterday, I welcomed Murray Newman, about-to-be-former Harris County prosecutor, to the defense ranks. For those of you who plan to switch sides, or have recently done so, give this a lot of thought. Robert's final thoughts, aside from the technical differences in the skillset involved, merits special attention:
I do not believe that someone who has been prosecuting serious felony cases for years can not defend a case. The possibility is there. A lifelong ADA would have a better chance than a PI/Bankruptcy lawyer.
However, only years of zealous defense advocacy can make one a better defense attorney. It's not just the procedure and penal code. It's the fundamental belief system that defines each side
Until you realize this, you're not really a criminal defense lawyer. Robert Guest is a criminal defense lawyer. Are you?
Robert's entire article is worth a read. It helps to understand why prosecutors do and say the things they do.
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I'm not a lawyer of any stripe (though I enjoy reading the blawgs; logic and arguments are an interest of mine if not a practice). (That last sentence might be a joke.)
It's a good point.
I have found that the reverse is true for tax law. My personal experience is that lawyers who had worked for the IRS are generally the best in their field.
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But if you're not a lawyer, how would you be able to tell? From the outside, things often look very different than from the inside. Are you employed by the IRS?
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Thanks for the link. No one likes to critique their own credentials, especially blawging defense lawyers.
However, as time passes the divide between what being a DA taught me, and what is useful to my clients only widens.
Finally, I accidentally posted a very rough draft of this yesterday. It was up for a few hours before I realized my mistake and did some quick grammar panic editing.
I'm happy with the finished result, and the feedback has been good.
Thanks again,
RG
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It is because you critiqued your own credentials that your post is so powerful. Bennett can say it. I can say it. But it's different when you say it about yourself. Lesser people would not have had the strength to openly say what you have. Thanks for being so brutally honest
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As an outsider (non-attorney), this was a very interesting post, revealing some of the inside motivations and attitudes of criminal prosecutors and defenders. Especially Guest's post, as he has been on both sides. Don't know where else one would glean this info...
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All the credit goes to Robert, whose post was quite remarkable in its honesty and fortitude. No matter how I would say it, Robert's post makes the point in a way I never could. And it's a point that is almost universally misunderstood by the public, so it needs to be said.
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