A Prosecutor’s Privilege

Caleb Mason was making the point that good papers matter. It’s a point that’s been made before, but bears repeating.

You can win or lose a case based on the quality of your written submissions to the court—from pretrial motion practice through trial, post-trial motions, and appeal.  I can’t exaggerate this point:  courts notice good work product.  It must be cleanly argued, compliant with formatting and length rules, properly cited, supported by declarations, and directly on point.  Many judges, especially in state court, see a steady stream of written filings that are, in a word, half-assed.  Producing a high-quality piece of legal writing takes time, effort and skill.  We take pride in our written work at Brown White & Osborn LLP.  We don’t submit sloppy, half-baked briefs.  Good writing gets results.

If that firm name sounds familiar, it should. But Caleb’s point isn’t funny or snarky, and there’s no mention of taint or ponies. Producing excellent papers can make the difference, and it’s absolutely critical and worth the effort. But then, that’s the defense side, because we’re invariably at the bottom of the mountain fighting our way to the top. The prosecution, on the other hand, expects to win, so why bother putting in good papers?

After Caleb did his voodoo, and the prosecutor came to the realization that he was about to lose on an actual innocence motion, a nearly impossible motion for the defense to win, privilege kicked in.

There’s no mystery here; it just takes time, effort, and organization.  I drafted the brief and sent it over to the prosecutor.  I asked for feedback: “Anything you want to add?  Any facts you think I left out?  Let me know and we’ll add them.”  There was no response.  I filed it.  The prosecutor was busy and asked for extra time to respond.  I agreed.  The government filed its opposition, but did not include any exhibits and did not cite to any of my exhibits.  In other words, the government’s opposition did not include a single supported reference to a specific fact.

When we went to court, the judge was not pleased.  “The defense motion cites all this evidence.  Why didn’t you cite any?”

Why? Because when you’re on the side that’s supposed to win no matter what, why bother?*

[The DA]: Well, I know with my reply there are not referenced sections.

THE COURT: I didn’t think there were. I didn’t see any.

[The DA]: There are not, and I think the People assumed that the Court would go through it because — I mean, you’re saying that somebody is factually innocent. You have to base that on the police reports and the preliminary hearing transcript, and I don’t think that the Court can just rely on defense counsel’s selected references. I don’t think it gives the Court a full opportunity to review the facts presented in this case because another judge listened to the facts presented and made a ruling that there was sufficient evidence, and, I think, by picking and choosing, that the Court isn’t giving enough attention to all the facts.

THE COURT: Actually, I’m not. That’s not the case. The case is that Mr. Mason cited specific facts in his brief that you haven’t refuted…. And again my response is: If there were facts that you could cite to and didn’t cite to but should have, those would be in your opposition.

Had this colloquy happened outside a courtroom, it would have sounded more like this:

You had a chance to say anything you wanted. You blew it. Tough shit.

But privilege being privilege, and the notion that the winning team could lose being so utterly foreign and impossible, the prosecutor was unready to give up. Instead, she sought another bite of the apple, the opportunity to get it right this time. Just one more chance, judge, because I’m the prosecutor and I’m not supposed to lose.

THE COURT: So you want Mr. Mason to have to drive back out from LA for another motion when he filed this one timely and you had the opportunity to respond and you didn’t basically refute any of the factual assertions?

THE DA: Because I — I — the purpose was to — I guess my assumption was that the Court was going to read the reports and read the transcript, and I — I mean, Mr. Mason’s position is obviously such that he wants this motion to be granted, so he’s going to include facts to support that; right? So — but the decision is based on the totality of the evidence, and that’s why in these motions everything gets submitted like the police reports and the preliminary hearing transcript, and so — maybe wrongfully and I will apologize to the Court — I assumed that the Court would read the transcripts and the police reports; and this is my first time doing this motion, and I apologize to Your Honor.

MASON: I did want to make one brief comment in response and that is that when I submitted this entire package to the People — this was in July, Your Honor — not only did I give it to them ahead of time so that we could discuss the motion and I hoped that they would stipulate, I also said expressly multiple times, “If you have anything that you want to add to this, please add it and I will add it.” As the Court knows, I spent a lot of time in [the prosecutor]’s position on that side of the bench, and I don’t want an incomplete record either. I want justice. I want the same thing the People want. The only other caution I would give to what the People, I think, are suggesting is this: I spend a lot of time in front of federal courts of appeal, and there’s a comment I heard many years ago that, I think, is applicable here. An attorney stood up and said to a court of appeal panel, “Well, you just have to read the whole record and you’ll see that my opposition is correct.” The response was — I think, quite applicable here — “Counsel, if there’s something you want us to see in this record, put it in your brief.” And the People simply have not done that and I have.

THE COURT: And I frankly agree with you.

To be fair, not many judges would get it as this one did. Even to the point of recognizing that one extra appearance meant that Caleb had to drive from Los Angeles, burn a day of his life, merely to be there for the prosecutor to get her Mulligan. Most judges are careless with a defense lawyer’s time, squandering it mindlessly as if they get paychecks like prosecutors. Or judges.

But the court went far beyond mere appreciation of the temporal burden. The papers were not just good, but great. Caleb put in the time and effort to nail down his motion, as was apparent to everyone but the prosecutor. There is no right to do a lousy, superficial, ineffective job of it the first time, and, should that not be sufficient, do it over again, this time with effort.

This prosecutor mailed it in because she was on the winning team, while Caleb put in the hard work to prevail. Even prosecutorial privilege can be overcome with enough effort. Maybe not always, but it does happen. It’s worth doing. More importantly, you owe the client no less than your best work.

*This, incidentally, is one of the reasons why former prosecutors do not necessarily make good defense lawyers. Their “skills” at prosecuting often have little to do with them, and much to do with the side they’re on. When they switch sides, they have an epiphany that they weren’t brilliant lawyers, but just prosecutors. When they’re no longer prosecutors, they’ve got nothing.


6 thoughts on “A Prosecutor’s Privilege

  1. Billy Bob

    Very good, Caleb. It’s nice to hear good news on occasion. These things should happen more often on the road to the greatest criminal justice system the world has ever known. Ha.

  2. PDB

    I think the most amazing thing about this story is that the judge sided with common sense and did not let the prosecutor refile the motion. Most judges probably would have given the prosecutor another few weeks (or years) to get all their ducks in a row.

  3. Jeff Gamso

    Back when I was in law school in Texas, a lawyer (a really good one) who made his living going after the big oil companies and their big law firms, told me what he described as the secret of success in his business: “You don’t have to be great,” he said. “If you’re journeyman good, you’ll win more than your share as long as you do the job. They mostly just mail it in.” It wasn’t that biglaw couldn’t do great work. It’s that the folks too often didn’t think they needed to because BIGLAW.

    Same for the prosecutors (though of course many of them can’t do great work).

  4. B. McLeod

    Also possible that the People actually had nothing with which to oppose the motion but did not want to just come out and expressly admit it. Pretty cheeky though, to actually stand there in court and tell the judge he needs to do your job for you. Many judges would have taken that far less politely.

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