UPDATE:  Reliable sources inform me that Eric Turkewitz, after reading my challenge to his proposition and having the big words explained to him, was last seen mumbling that he looked too old in the photograph.  Being a sympathetic and sensitive soul, I’ve decided that a new photo of Eric was in order.  I hope this makes up for the lashing he received.
 


Yesterday, at a meeting of some of the finest legal minds in New York, the proposition was put forth by
Eric Turkewitz of The New York Personal Injury Law Blog
that former prosecutors are per se competent to be criminal defense lawyer.  Turkewitz, better known as Turkey, has never been so wrong.  Now I am not saying that former prosecutors cannot be competent, if not excellent, defense lawyers.  Indeed, many of our best were once on the dark side.  But Turkey’s position is that they are inherently competent by virtue (if you can use that word) of their service to the State.  Turkey, you ignorant slut…

 

Reason 1:  Prosecutors really aren’t as brilliant as they think.  Young ADAs (assistant district attorney) are amazed at their good fortune in court.  They win argument after argument.  Why?  Is it because they’re brilliant Turkey?  NOOOO!!!!!  It’s because they are prosecutors.  In fact, the pap they spout is often ridiculous, but judges (like defense lawyers) know what the right arguments are and don’t turn criminal defendants out on the street because some snot-nosed clueless prosecutor blew the argument.  So when they leave the office, they are no longer the recipient of the court system’s largesse, and have to win not only on their own, but against all odds.  Maybe they aren’t as smart as they thought.

 

Reason 2:  Judges don’t love you.  Many ADAs appear before the same judges over and over.  Some do so every day.  They become a courtroom fixture, at least for a while, and the judges who deal with them regularly treat them with greater familiarity than defense lawyers who they see once every couple decades.  But once they leave the office, they fall into that great abyss where all ordinary lawyers dwell.  No longer on a first name basis with the court personnel, their expectations of favors, or at least the occasional courtesy, from their good buddy the judge is no longer forthcoming.  The judge may still like them, but their dreams of being a judge’s pet are dashed forever.

 

Reason 3:  They can try a case.  The oft-held belief that ADAs get a ton of trial experience is more myth than reality.  Cases do not go to trial with great frequency, and ADAs can’t gain experience trying cases if there are no cases to try.  But there’s a much larger problem.  ADAs do direct examination.  Defense lawyers cross.  Direct doesn’t teach you how to cross, and it’s an entirely different skill set.  So an ADA who is fortunate enough to get trial experience may well gain expertise at direct examination, but he’s a dud when it comes to making a FBI agent cry on the stand.

 

Reason 4:  A Winning Strategy.  Prosecutors get cases after cops make them.  If the case is bad, they plead it or toss it, but they aren’t forced to try to win it.  That’s not the world of the defense lawyer, who has no say in who gets prosecuted and who doesn’t.  With no cops to do the dirty work, the defense lawyer is stuck with cases as they walk in the door and charged with coming up with some way to represent his client.  Prosecutors think it’s hard work to convict.  But when it comes time to design a winning strategy to acquit, they finally realize what work is.

 

Reason 5:  Go Along to Get Along.  Prosecutors represent the state, not the complaining witness.  They can talk with them or not, as they desire.  If the complainant is a pain, they refuse to take their phone calls.  This is called discretion when you’re a prosecutor.  When you’re a defense lawyer, this is called ineffective assistance of counsel. 

 

To sum up, prosecutors make their bones in cases that are presented to them on a silver platter by cops, which they can pursue or drop based on strength.  They may try a case or two, but never have a chance to develop an effective cross.  They delude themselves as to the strength of their personal skills without realizing they are the beneficiary of a system that assumes them to be inexperienced and quasi-competent, and judges who quietly assist them along the way.  And to top it all off, they have no experience dealing with real people who can neither be ignored, blown off or summarily incarcerated when the inconvenient truth of the criminal justice system comes crashing down on their heads.

 

So, Eric, do you give up yet?