Sunday, February 7, 2010

Rules #7 and 6 for Defense Attorneys to Remember

Continuing on, here are rules #7 and 6 from our friendly neighborhood prosecutor.

#7         The Prosecutor Didn’t Do It

Here’s an example, you’ve got a DWI case you’re handling where the client’s parents have hired you to represent their 17 year old son.  It was a dumb mistake and they’re seeking your help to plead for mercy from the prosecution.  During the PNC, you bring to the prosecutor’s attention that she, too, was once a young, dumb teenager.  The questions follow:  “Don’t you remember what it was like to be that age?” “Come on.  Didn’t you ever do anything stupid when you were that age?”  “Do you really want to ruin this kid’s life by making him take a conviction on something we’ve all done when we were young?” 

Prosecutors are very good at separating their personal lives from the job they do.  They have to.  A defense attorney asking them to do anything contrary (like above) is an extremely ineffective way to open the lines of communication.  It doesn’t matter what the prosecutor did or didn’t do.  It only matters what your client did and what the appropriate way to handle it will be.  Ultimately, it can be viewed as a personal attack on the prosecutor that creates a very powerful animosity.  When a prosecutor walks into the courthouse everyday, the first thing he does is put on his prosecutor hat.  He’s not going to take it off simply because you ask him to.

#6         Don’t Downplay.

Your client stole a six-pack of cokes and two bags of chips from the convenience store.  The offer?  5 years in the pen.  What?  You’ve got to be kidding, right?  Wrong.  The prosecutor has reviewed the case and seen your client’s criminal records.  He’s seen the 8 prior theft convictions, 2 of which were penitentiary trips.  Sure, it may have been 18 years ago, but it’s clear to the prosecutor your client has not learned his lesson.  His case is worthy of enhancement and the prosecutor is taking advantage of the opportunity. 

You have the mitigating information.  You know your client really has changed.  He’s had the same job for the past twelve years (kept it since getting out) and is happily married and up-to-date on his child support.  He’s even helping coach a little league baseball team.  He just screwed up.  He was having a bad day, and for some reason, decided to act out.  Another trip to the pen will ruin his life.

You sit across from the prosecutor about to fly out of your seat.  He needs to hear this information.  And besides, it was only $10 worth of stuff.  Come on prosecutor!  Are you serious?  IT’S NOT A BIG DEAL…  Wrong!  Remember, to the prosecutor it appears, on paper, to be a big deal.  Don’t downplay the crime.  The prosecutor’s response to your “it’s not a big deal” comment is going to be one of immediate defense.  Defense of the law in their minds.  You don’t want to put the prosecutor in the position of feeling like he has to defend the law because your client is refusing to accept responsibility.

Rather, remain patient and calmly explain the situation.  Show the prosecutor deference for his offer and kindly and mildly reject it.  Not because “it’s not a big deal,” but rather because the punishment doesn’t fit the crime.  Openly reveal your client’s desire to accept responsibility for what he did.  That, above everything else in many cases, is what the prosecutor is looking for.  If you can show him your client isn’t trying to fight responsibility, but merely pleading for mercy, you’re much more likely to receive an open response from the other side of the table.