In the suburbs of New York City, there is substantial variability in the quality of criminal defense representation.  There are some very good lawyers, and there are some dangerous lawyers who really shouldn’t be allowed near a client.  It’s hard to tell them apart when they put on a suit. 

But here’s a clue :  When the defense lawyer’s “resume” consists of “32 years in the Nassau County District Attorney’s Office, where he was deputy chief of the district court bureau and a senior assistant district attorney in the major offense bureau. He . . . has been in private practice since 2002.”

In People v. Dean, 2006-05415, the Appellate Division, Second Department held that the lawyer provided ineffective assistance of counsel and reversed the conviction for sexual abuse of her child, following a bitterly contested custody battle, and her net sentence of 21 years.  The panel

faulted her trial attorney, Mineola solo practitioner Ronald Schoenberg, for ineffective assistance that began during his opening statement when he argued to the jury, “[W]e’re going to prove to you that she’s innocent,” and continued throughout the four-week trial.

Prove her innocence?  That’s incredibly tough talk for a defense lawyer.  Of course, that’s the flip side of what a prosecutor says in every opening statement.  Was the lawyer confused about which side he was on, or was this his idea of defense bravado? 

Here, the ineffective assistance of trial counsel commenced from the opening statements. The defendant correctly contends that defense counsel erroneously assumed the burden of proof when he made the following representation to the jury: “[W]e’re going to prove to you not only that the People can’t prove guilt beyond a reasonable doubt, we’re going to prove to you that she’s innocent” (emphasis added). It is impossible to reconcile defense counsel’s assumption of the burden of proving the defendant innocent with the defendant’s constitutional right to the presumption of innocence. Notwithstanding the trial court’s correct charge to the jury on the burden of proof, her counsel’s impermissible assumption of the burden of proof was so egregious and prejudicial that it contributed to the deprivation of the defendant’s right to a fair trial. (citations omitted)

Thirty-two years in the Nassau County District Attorneys office is a very, very long time.  This was a lifer, a career prosecutor who switched sides very late in his career.  There’s no indication why, nor am I inclined to speculate.  But after 32 years of hearings and believing in the mythology of the criminal defense lawyers as cowboy, as gladiator, as wild-man without rules, it appears that the message was too deeply ingrained.

Things didn’t go much better during the trial, with witness badgering, failure to object to irrelevant and prejudicial evidence, and nasty fights in front of the jury with the trial judge. 

The attorney on appeal, Kevin Keating, is a solid and serious lawyer.  As this case is going back for a new trial, hopefully the defendant will chose Kevin the next time around.

This apocryphal tale isn’t told for the purpose of letting you know about one particular lawyer who has no business trying cases for criminal defendants, but to harp on the old theme that former prosecutors make competent defense lawyers.  The skillset of the prosecutor is not the same as the defense lawyer.  The fact that someone was once an assistant district attorney, even a bureau chief, or an assistant United States attorney does not mean that he has the knowledge or ability to represent defendants.

Whenever a criminal defense lawyer’s primary self-promotion is that he was formerly a prosecutor, run.  Run fast and far.  It is not that some former prosecutors have become excellent criminal defense lawyers, but that they don’t use their former position to sell themselves. 

Let me be as clear as possible about this:  There are many former prosecutors.  They do not have any “inside track” to getting better deals from their old buddies, or insider knowledge of the system that will help defendants.  The skills that make for a good prosecutor (or a bad one, for that matter) have little to do with the skills needed to defend.  If anything, as shown by this decision, former prosecutors have a huge hurdle to surmount before they learn how to be effective defense lawyers.  If there’s anything to assume, it’s that a former prosecutor will make a lousy criminal defense lawyer until proven otherwise.

Most people, including lawyers who don’t practice criminal law, assume the opposite.  They think that a former prosecutor necessarily makes for a good criminal defense lawyer.  This is absolutely, totally, completely wrong.  And I plan to keep making this point over and over, until it sinks in.