Those who can, do.  Thoss who can’t, talk about those who can. 

We posted about Michael Rains and his penchant for  strong statements to the media.  Not surprisingly, the media attention surrounding Barry Bonds (who I believe to be a baseball player of some renown) continues to swirl, and includes Rains in its tempest.  And so, the salacious New York Times reports.

The lead is about how Barry Bonds is going to do the OJ Simpson “dream team” thing, to bring more talent onto the legal team with some familiarity with federal practice.  This is a sound idea, because it’s always better to be represented in a dog fight by someone who knows the rules of the game rather than someone who looks like a deer in the headlights. 

Part of the problem, according to the Times, is that Rains’ tough talking stance “distanced” him from the prosecution, meaning that he did not endear himself to the Assistant United States Attorneys in whose hands his client’s fate would lie.  Bonds’ business lawyer backed up Rains’ public defense of his client.

But Peter Keane, a law professor at Golden Gate University, said that it was a criminal defense lawyer’s job to maintain a working relationship with prosecutors and that Rains took the opposite approach by developing animosity with them, a strategy that caused him and Bonds to be “blindsided” by the indictment.

Really?  Funny how a prosecutor has no job to maintain a working relationship with the defense, eh?

Now I know that lawprofs can be very, very sensitive to criticism, but here’s a newsflash.  A criminal defense lawyer’s job is to represent the interests of his client.  We “work” with the prosecution, just as they “work” with us, of necessity.  Some people are easier to work with than others, and some cases lend themselves better to more cooperative ventures.  But, it is not merely to maintain a “working relationship.”

Currying favor, by the way, is not what I would call a “working relationship.”  The problem with this critique is that a target who is not looking for a sweet inside plea or cooperation has nothing to gain by his lawyer placing a higher priority on getting along than on protesting his innocence.  As Bonds wants to fight, what more effective strategy than vehemently maintaining innocence is there?  Anything less would have made for a much more pleasant prosecution, but one exceptionally lousy defense.

No one is saying that Rains should have gratuitously burned his bridges, but then no one suggests that he did.  Do we think that if Rains had played footsie with the government they would have shared the grand jury minutes with him in advance of the indictment?  Not likely.  Maintaining a working relationship with the government is like going the wrong way on a one way street.  When push comes to shove, rest assured that the government isn’t too worried about maintaining a working relationship with the defense.

Now Peter Keane should know better, as he’s got some real world experience, and I suspect that the comment attributed to him is either incomplete or out of context, because it’s hard to imagine anyone who’s ever been in the trenches would make a statement like that without enormous qualifications.  And you know there isn’t enough room in the story for those professorial-type explanations that make law review articles so fascinating.

But that’s one of the many reasons why lawyers, and law professors, need to be circumspect in what they say to the press.  Sound bites.  Only sound bites.  Did Peter Keane really mean to suggest that a criminal defense lawyers’ job is get on his knees and kiss the backside of some snot-nose kid prosecutor who will push his client off the cliff at any moment.  Sure, the nice “working relationship” lawyer will get a sweet, “sorry about that, dude” afterward, but the client is still lying lifeless at the bottom of the cliff.

Obviously, opportunities for lawprofs to get their name and brilliance out there in the media when the press is focused on lawyers who actually represent clients is difficult.  But before you pontificate on right and wrong, good and evil, and most importantly, how real lawyers should handle their cases, bear in mind that the stuff that emanates from you will be used critically against the guys who are out there in the trenches. 

You may not really care about this, and indeed you may well believe that your ivory tower perspective on how things should be done to represent actual living, breathing clients merits public airing, but remember the primary advice of any criminal defense lawyer:  You have the right to remain silent.  Use it.