Thursday, February 11, 2010

The Final 3 Rules for Pretrial Negotiations with Texas Prosecutors

Below are the last of the rules offered for posting by a Texas prosecutor:

"At this point, you may view these rules as a PRO-prosecution rant.  That is not my goal.  These are simply some recommendations which are ignored by defense attorneys on a daily basis, thereby destroying any chance they have of being successful in negotiations with the prosecutor. 

Here are the final 3 Rules.  If nothing else, I hope these rules have given you a little insight in one prosecutor's mind.

#3        R-E-S-P-E-C-T

#2        No Personal Favors

#1        Don’t Lie

#3        R-E-S-P-E-C-T

Rule #3 is one that cannot be overlooked.  And it’s one that might take some open-mindedness on your behalf.

Prosecutors don’t do the job for $$$.  They don’t do it for the power.  They do it because they have a passion for civic duty (at least that’s why I do it).  They have a passion for upholding the law and being the voice of victims and the community.  There is a great sense of pride that comes with being a criminal prosecutor.  It’s because the job is hard, relentlessly stressful, and incredibly rewarding.  And why do they do it?  Why does anyone work in the criminal justice field?  To see that justice is done.  Sure there may be those prosecutors that come along seeking trial experience so they can land that big firm job they didn’t get out of law school. But for the most part, prosecutors knew they were going to be prosecutors in law school.  Most of them view it as a calling.  And you, as the defense attorney, must find a way to respect this. 

Respect the prosecutor?  That’s right.  Appreciate what it is she does for a living.  She is your adversary, but not your enemy.  The two are not mutually exclusive.  I’m NOT telling you to be her biggest fan, just to respect her as an attorney.  She should also respect you, if you are a zealous and ethical advocate for your clients.  Make it real, don’t fake it.  Why?  Why do I have to respect her?!

Because she’ll recognize it.  She’ll recognize your respect and that produce a much smoother process for your current and future clients.  If you can build your relationship with the prosecution on the cornerstone of respect, communications will swing wide open as will your potential for success in negotiations.

#2        No Personal Favors

This is one where I’m going to get right to the point.  Do NOT ever ask for a personal favor on a case.  Never ever.  Not only is it ethically wrong, but prosecutors hate it.  It doesn’t matter that your client is:

            - Your nephew
            - The best man in your wedding
            - Your legal assistant’s wife
            - Your best friend’s son or daughter
            - An old best friend from college

And so on and so on.  In the event you find yourself representing someone with close ties, tread very, very lightly at the PNC.  I’m not telling you to refrain from relaying the relationship to the prosecutor, but never use it in a way that makes the prosecutor feel like your asking for a personal favor.

It’s a quick and fast way to lose credibility on the case and damage your reputation with the DA’s office.  And it appears very slimy.  Present it in the same way you would any other case.  Do your homework and be prepared.  Show the prosecutor why a lesser punishment is the right punishment and so on.  The situation where this will get you in trouble is the one where you have created a good working relationship with the prosecutor only to watch it dissolve in an instant because you have now put that relationship in a most awkward position.

#1        Don’t Lie

And we arrive at number one.  If you ask them, most prosecutors and give you a list a mile long of criminal defense attorneys whom they know have lied to them on occasion.  You should avoid this legacy at all costs.  For what ever reason, somewhere along the way, defense attorneys accepted lying as an acceptable way of zealously representing the client.  I do not mean to say that all defense attorneys are liars, because I have certainly tried cases against many ethical, honest, and scrupulous defense attorney for whom I have the upmost respect.

The bottom line is that being anything less than truthful doesn’t work.  Plain and simple.  It doesn’t work because once you find yourself telling that one little lie to a prosecutor, the habit of lying will follow.  And when you become a lying defense attorney your reputation ensues as a lying defense attorney.  Every prosecutor will know you’re a liar and you’ll be labeled. 

It  might only take that one little white lie.  Prosecutors talk.  They share one office and they share everything with each other.  When a prosecutor catches a defense attorney lying, it’s almost like winning a trial.  They immediately tell every other prosecutor and overnight you become a liar.  And for what?  For a few less months probation for your client?  So that you can get the prosecutor to waive the enhancement?  Maybe you lied in your motion or you lied about what a victim did or did not say.  Maybe you just told a little one about your client “trying” to get into the Army (he did say he had thought about it once.) 

It is never, ever worth it.  Sure, you may get one client a little better deal on his case or get a prosecutor to agree to suppress some evidence.  The problem is every client after that one is jeopardized because he’s being represented by the lying defense attorney.  You’ll have no credibility when you sit down at that negotiation table.  You’ll have no credibility when you sit at defense table during trial.  And why is that so important?  Your credibility is everything in order to be successful in criminal practice.

Be honest.  Don’t lie.  Your duty is not to create a fairytale defense.  Your job is to represent your client to the best of your ability based on the information you gather.  And, just like respect, prosecutors recognize honest defense attorneys.  The reason is because, unfortunately, they are so few and far between the dishonest ones.  You’ll produce that great working relationship with the prosecutor that will harvest future success at PNC’s.


All right, I’m done.  You’re thinking I’m na├»ve, right?  You’re thinking “yeah, in a perfect world where the prosecutors played by the rules, too…”  Maybe you see this as an ineffective method because it’s opposite of what the masses of criminal defense attorneys do everyday.  And it seems to work.

No guarantees here.  But here’s why I tell you it works.  I know defense attorneys that follow these rules.  Several of them.  And they are the most successful, respected defense attorneys I know.  And they’re not pushovers.  These are the guys the prosecution hate trying cases against.  Because they’re credible.  They’re credible in front of the jury.  They’re credible in front of the jury because they’re credible in their legal habits.  And they relate in an amazing way with the jury. 

At PNC’s, they relate with the prosecutors.  They are those people who try and do things for the right reasons.  Prosecutors recognize it in these defense attorneys and at the negotiation table, the debate, although very spirited at times, is usually left in an agreement.  An agreement where everybody leaves happy, including your client."