Dec 23, 2015 Wake the recklessly nasty opponent up to reality, and use the opened proverbial incision to weaken the opponent and strengthen your side
Eight years before I attended law school, criminal defense great John Zwerling described now-former longtime chief Fairfax County, Virginia, prosecutor Robert Horan as not a “particularly merciful person” who “‘uses the policy [of not waiving juries in drug cases] as a club to force guilty pleas.'” The Washington Post at the time reporter that A prosecutor in Horan’s office “prosecuted a drug case in 1970 in which a high school youth was sentenced to four years in prison for possessing one one-thousandth of an ounce of hashish.”
I can simply agree to disagree with and go to pitched battle against prosecutors who vehemently pursue the wasteful and damaging excesses of the decades-long war on drugs/the Constitution, and regularly refuse to waive juries on drug and DWI cases as opposed to cases of the severity level of murder, rape and robbery. However, some prosecutors go beyond that to drip contempt from their mouths against the Sixth Amendment’s guarantee to the right to effective assistance of counsel, the Fourth Amendment’s barriers against unlawful searches and seizures, and the Fifth Amendment’s procedural guarantees for a fair trial and fair pretrial proceedings.
I have a choice between being infuriated at my tax dollars and my local government supporting such contempt by paid civil servants for our Constitutional rights, and not missing a beat going full guns into the courthouse battlefield. The latter is essential, while the first will take the fighter into a debilitating battlefield tailspin.
At the same time, the criminal defense lawyer must be ready to hold a proverbial mirror to the contemptuous prosecutor and a flashlight to his or her eyes and face to put the prosecutor’s true self on ugly and point-losing display. Doing so can open a hole in the contemptuous prosecutor into which the criminal defense lawyer can then pour salt into the gaping self-inflicted wound, cement to stop the prosecutor in his or her place, or a wedge to make the wound proverbially bleed even more.
As a great criminal defense colleague of mine once proclaimed: “You say it. You die with it,” of course proverbially so.
Once the criminal defense lawyer opens the prosecutor’s proverbial wound, no harm can come from showing the prosecutor some compassion over the prosecutor’s own self-inflicted bleeding, which compassion the prosecutor is free to benefit from if the prosecutor retreats from such contempt, as an alternative to continuing to suffer from the prosecutor’s self-inflicted wound.