Tuesday, February 9, 2010

Rules #5 and 4 for Negotiating with Prosecutors

A note from the prosecutor who wrote these rules:  "I expect nothing from a defense attorney that I do not also expect from a prosecutor and (where it makes sense) these rules apply to both sides.  Prosecutors should be ethical and professional in all their dealings and should have a singleminded focus toward Justice."

With that in mind, rules #5 and 4 for pretrial negotiations are:

#5 Be Passionate but Professional


#4 Past Cases Don't Matter

5.         Be Passionate but Professional

The criminal area of the law is a very adversarial one.  Everyone knows and expects that.  As mentioned earlier, prosecutors and defense attorneys deal in the negotiation of liberties and freedoms.  It’s easy to see how negotiations can get heated and out of control.  Just as the defense attorney expects the prosecutor to be hard-nosed, the prosecutor, in turn, expects a passionate defense from the defense attorney.  However, she doesn’t expect to deal with someone who cannot maintain a level of professionalism.

There will be countless times where the defense attorney deals with a prosecutor who is stubborn to the bone.  She’ll refuse to budge or even slightly consider mitigating evidence.  It happens.  But you have the opportunity to “kill her with kindness.”  Getting overly angry and losing your temper will get you absolutely nowhere.  The same goes for whining.  Your job is to zealously defend your client’s rights, not to try and win an oscar in a courtroom during the PNC.

The prosecutor will always expect a debate.  If she doesn’t want to negotiate, then she won’t make an offer.  She’ll just tell you to set it for pretrial hearings.  Keep this in mind.  If she’s made an offer and you show up at PNC and he begins discussing the case with you, then you know she’s willing to move.  Maybe she won’t move as much as you would like.  In a professional way, debate the case.  You can be passionate without being childish.  Yelling, screaming, and whining (and, yes, it does happen all the time) by the defense won’t gain you any ground with the prosecutor.

I am NOT telling you to suck up by any means.  But pounding the table with your fist or whining because “you’re not being fair” is taking it too far.  It seems many defense attorneys think there are no bounds to a zealous defense.  They may be right.  I guess, in all reality, you can do what you want.  It’s just flat out an ineffective way to negotiate with the prosecutor. 

Ultimately, you will gain respect from the prosecutor and he’ll gladly welcome you to the negotiation table.  Your relationship with prosecutors cannot be thrown away because you’re not getting what you want a particular case.  I cannot stress enough how important it is to maintain this relationship. 
#4         Past Cases Don’t Matter

Two months ago, you reached a great agreement with the prosecutor on a case that left you, the client, and his parents happy.  It was a bad case and the letters of recommendation and proof of enrollment in summer classes were enough to get the prosecutor to agree to a deferred class C probation.  Today, your scheduled PNC with the same prosecutor on a very similar case isn’t going in the same direction.  She refuses the same deal on this case.  The facts are different and, in her mind, so should be the punishment. 

Do you say it?  Do you bring up how he agreed to this two months ago on that other case?  No, no, no.  It is IRRELEVANT.  Prosecutors don’t have blanket deals they give on similar cases.  Why?  Remember, the law gives crimes a punishment range because every situation is different.  Determining the proper punishment on any given case?  Well, the prosecutor views that as her job.  And she’s not going to agree to something just because she’s done it before. 

It is your job to present evidence or points of law that weaken the prosecutor’s case thereby enabling her to agree to reduce his offer.  I’m not asking you to forget about what happened on the case two months ago.  Use that to your advantage.  You know she’ll make that offer if you do your job.  Do your job and don’t just ask her to do it because “you did it on that other case.”

*I’d like to point out, part of this does and does not apply to co-defendant’s cases.  It’s always important to know what the co-defendant is getting.  The prosecutor will, of course, take co-defendant’s offers into consideration when making an offer for your client.  But, as above, don’t tell the prosecutor she HAS to offer your client the same deal being offered to the co-defendant.  That is false.  She has the discretion to offer whatever she feels necessary.  Maybe she sees a different prosecutor made the offer on the other case and he’s “way too soft on crime.”  Or your client’s criminal history is much worse than her co-defendant’s.  Present it in a way that will enable the prosecutor to reduce her offer to something similar to the other. 

“I understand the co-defendant has been offered this (offer X.)  And based on this information (insert pertinent mitigation,) I feel my client should be a candidate for the same offer.”