While I keep an eye on some prosecutor blogs, you can’t watch everything in the blawgosphere anymore since there are just too many these days. I’m not complaining, just stating my reality. So when this post came along over the weekend from Western Justice, I had no idea until Ken Lammers and Gideon did their thing.
The post opens with a quote from the most dubious of sources:
“The defendant wants to hide the truth because he’s generally guilty. The defense attorney’s job is to make sure the jury does not arrive at that truth.”
Alan Dershowitz
It’s not the first incredibly stupid thing that Dershowitz has had to say. The source is a 1982 article in U.S. News & World Reports, according to Wikiquote. While the context is unclear, it’s sufficiently stupid to stand as a representative expression of Dershowitz’s latent self-loathing.
With this intro, WJ launches into a “theory” that defense attorneys are “lie promoters.”
Now, most defense attorneys will not ask their clients for a full, detailed version of what actually happened. But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.
Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?
Let’s start at the top. Who says most defense attorneys don’t ask their clients for a “full, detailed version of what actually happened?” I’m unaware of Western Justice having any experience as a defense attorney, or having taken a survey. Interesting that the theory beings on an unfounded assumption.
Then, the theory proceeds under the silly hyperbolic argument that everything the cops say happened is “exactly” what happened, “down to the very last detail.” This has never happened in my 25 years of lawyering, but frankly is immaterial. The very last detail is the “color” of the situation, not the crux of the crime. If the cops get the critical facts right and establish the elements of the offense, then we have a guilty defendant.
But this is where we separate the men from the boys. Western Justice, after giving examples worthy of the finest misdemeanor assistant, asks:
Is he not promoting the lie by arguing it to the jury, and submitting it as the actual truth, when he knows full well how incredulous that “truth” is?
This is the cocktail party question, the one that typically follows “how can you defend those criminals?” It comes somewhere after the spinach dip and your third vodka. This is the question that makes lawyers (not necessarily law professors like Dershowitz who like to play all side against the middle just in case a TV show needs a comment) wince.
Criminal defense lawyers don’t argue what the “truth” is, unless they want to end up like this guy (note that he became a defense lawyer after 32 years as a prosecutor). We argue that the prosecution has not proven guilt. Whether you want to frame it as putting the prosecution to its proof doesn’t matter. Our job is to make the government work for its convictions.
But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.
So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.
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Bravo! Very well said. There’s a lot of subtext in that post and you captured it (and responded to it) very well. I’ll add my thoughts later.
Thanks Gid. I look forward to hearing your thoughts.
I’m a prosecutor, and surely that’s where my bias lies. But at least I’m aware of it and actively try to account for it.
I can’t speak for every prosecutor’s/DA’s/USA’s office in America, but in my office for every two police reports we charge, we deny charges on one. Stop and think about that ratio for a moment. This simple fact, in my mind, is a compelling response to your Odie crack. An innocent suspect’s best friend is me reading his police report. So, I think I do more than my share of searching for the truth, thank you very much. Perfect? Of course not. A lot closer than you’d be willing to admit? Absolutely. Feel free to take the credit when I don’t charge your potential client with a crime, but I’m the one who didn’t sign the warrant.
True, some of what we don’t charge is b/c of what we know even a minimally competent defense attorney can do with it to create reasonable doubt. So in that respect, the defense bar plays an indispensible role in the criminal justice system. Please keep up the good work. The more good defense attorneys there are, the easier I find it to do my job. Not necessarily win more of my cases, but do my job. Unfortunately, my job remains quite difficult a lot of the time. And btw, a good defense attorney accepts the difference between “my guy is innocent” and “the prosecutor hasn’t carried his burden.” Those who don’t, and who come up with snarky equivalencies, could probably benefit from being a little more honest with themselves and the precise parameters of their very important job.
But because I’m a biased prosecutor, I will say that there is really no way around the differences between “I seek to do justice and to incapacitate murderers and rapists and the like by putting them in prison where they can’t hurt you” and “I hold the prosecution to its burden.” There are things to be said by all sides about which, if either, is more important. But don’t mistakenly think they are the same. The truth is that people really do murder other people, and rape other people – and the society of which we are all a part has decided that those actual offenders need to be incapacitated. Admit it – you want me to do my job well. To me that includes only bringing cases when I know I can meet my burden.
There’s nothing more persuasive than some anonymous ADA, from some anonymous locale, who informs the world that they are the most upright, honest, appropriate prosecutor ever, and the people of their unknown jurisdiction should thank their lucky stars for having such wonderful prosecutors who are the most perfect prosecutors in the whole wide world.
Well Mark, then you must be the best prosecutor ever in the best prosecutor’s officer ever and every bad thing that happens to anyone is someone else’s fault and doesn’t happen in your jurisdiction. And if you say so, then who could possibly doubt it, since no one knows anything about you or your office.
I hope you’re half the prosecutor you think you are.
“…the most perfect prosecutors in the whole wide world.” – Did you miss the part where I readily admit that I am not perfect? It seems you’re inclined to let ‘er rip indiscriminately against any prosecutor for having the unmitigated gall to be a prosecutor, which you are obviously free to do, but please don’t misrepresent my post, which explicitly admits that I am not perfect. If you think I’m lying about a simple statistic, and that I rubber-stamp every single police report and every single police statement in those reports, then just call me a liar and leave it at that.
When you hope I’m half the prosecutor I think I am, is that if I’m on the other side of the lectern from you, or if I’m prosecuting the man who committed a crime that deeply affected your life? Either way, I’ll try to do right by you. And either way, I stand by my statement about the importance of good defense attorneys, and genuinely hope you are one.
I’m sorry for even trying to challenge your unassailable opinion. Please accept my apology. Now if you’ll excuse me, I have to go train every single cop I can find how to tell a convincing lie on the stand. Then I have to tell them all never to tell anyone what I told them. It’s a full time job, I tell ya’.
Let me explain. Nobody but you knows who you are. Are you lying or telling the truth? Who knows? Are the best or the worst prosecutor? Who knows? Are your stats true? Who knows. You see, that’s the nature of anonymous posting on a blawg. I don’t distrust you, but I know nothing about you either. Are your perceptions about yourself, your reasonableness, your cops and your adversaries accurate? How would I know? Are you seeing the picture?
That said, there are going to be people who do not fit within my generalization. That’s the nature of generalizations. Unless I write a post about every individual prosecutor across the country, state and federal, it will by definition be inaccurate as to some.
If you had read things about prosecutors here and elsewhere, you would find that criminal defense lawyers appreciate the job that prosecutors have to do, and we want them to do their job well. We are not the enemy of your function, but the execution of the function when it’s done poorly, malevolently, dishonestly and foolishly. We all know good prosecutors. Some of us even know great prosecutors. Few are good. Even fewer are great. Where you fall in the spectrum is unknown. See paragraph 1.
Well, I remain unconvinced that if you knew my name and bar number you’d think any differently (what are you going to do, come to my office and check the stats yourself? – tell you what, ask your local office what their stats are, and if they charge 100% of what their cops want, then you’ll have all the ammunition you want, won’t you?), and since I work for an elected official who doesn’t need the headache, I’m not inclined to be a pain in his neck. You do have my email, if you really really think knowing my name will make your mischaracterizations of my critique more acceptable, send me an email.
By the way, I’m sure you have no problem beating up on Odie the prosecutor each and every time he puts an obviously lying cop on the stand. Wait, you mean sometimes the judge thinks the cop is telling the truth? Maybe you should write a post about naive judges.
I don’t think your not knowing my mother’s maiden name makes my reply any less valid (or invalid, for that matter), but if it’s easier for you to dismiss it for its anonymity, that’s cool too. After all, I know your name yet I find it quite simple to dismiss your more bombastic musings. Again, and if you’d be so kind as to let me explain for a second time, maybe the most beneficial thing for you to do is find a prosecutor you trust in an area you practice and ask him or her what percentage of cases that office charges. That figure would be much more relevant to you than my podunk’s percentage anyway, yeah? Maybe knowing that number for your own practice area will mean something to you. Maybe it won’t. But we both know that you knowing that number for a place halfway across the country will definitely not mean anything to you.
Not at all. This stat was obviously of paramount importance to you, not to anyone else. Nor does it reflect the significance of the problem. It’s just that you’ve got it in your head as being the “answer” and you assume that it must be the answer for everyone.
Does it dawn on you that in the same office, little odie ADAs may do things differently than smart independent ADAs like you?
Does it dawn on you that the charges you pursue becaue you have decided that they are viable may in fact be a utter crap, but you can’t tell the difference? Maybe the right number in your office should be 75% tossed? Maybe your cops are far worse than you imagine, and you haven’t even scratched the surface? How would you know?
Does it dawn on you that I may already know the answer to the question, because I’ve been doing this a long time and know thousands of ADAs and former ADAs and have discussed this with them?
And your statement about “naive judges” is one of the singular stupidest things I’ve ever read, marking you as particularly foolish. Which is the sort of thing that tells me what I needed to know about you.
“Stop and think about that ratio for a moment. This simple fact, in my mind, is a compelling response to your Odie crack.”
A compelling response?
Revealing, unintentionally, it seems. Self-righteous.
Making Children the Gate-Keepers had me re-read this.
You both are boobs!
You both play with the law, and it’s interpretations.
You pick and select cases so that you have a high conviction rate. You know NOT the word justice or fairness. The defense speaks for itself. They only give a shit when it happens to them or a family member. They know full well that their client is a piece of shit and they manipulate the law and victims to their advantage. You both are scum and the words justice should never be associated with Law. Truth hurts doesn’t it!
The Cops are another story, but remarkably, more honest than the both of you. I’ve seen DA’s say and do the dumbest things as well as the Defense.
You all need to do a ride along for a month in a big city, then talk all the shit you want. Until then, you are all bullsit artist and are pretending to give a shit about society. Look at the Duke case. If those Lads didn’t have money, they would still be in jail right now and that prosecutor would have been praised for doing a great job. What Bullshit!