Jan 03, 2016 Be ready for a full criminal defense battle, particularly because too many police, prosecutors and judges are hostile to criminal defendants
When we watched and discussed 12 Angry Men in my eighth grade social studies class, I was exhilarated over the presumption of innocence in criminal trials, the necessity of proof beyond a reasonable doubt, the chipping away against juror racial prejudice against the film’s criminal defendant, the requirement that a criminal verdict be unanimous, and the possibility of at least one level-headed juror’s turning around mob and herd mentality quickly to “get it all over with” to get on with the jurors’ lives even if a conviction will get the defendant executed.
In my view, hostility runs rampant against the Bill of Rights and even against devoted criminal defense lawyers by too many police, prosecutors and judges, as unreasonable impediments to moving the courthouse wheels quickly and to stopping and putting away the so-called “bad guys”. Among that group of hostile police, prosecutors and judges will be those who are willing to put on at least superficially friendly airs with criminal defense lawyers at least until they learn to separate out and be hostile towards the lawyers who will not make their jobs easy and who will not let go of protecting their clients’ rights.
I speak from experience where again and again various police, prosecutors and judges when they first meet me are kind, seeing me as possibly being a member of the legal establishment wanting to keep the “order” that they want to keep, but then when they see that I am not going to cut corners in defending my clients and am not going to make a trial unreasonably short, get hostile about “wasting time”, standing up for “scum”, and seeking as much relevant mileage from the Bill of Rights and favorable Bill of Rights appellate court opinions as I can.
This is not merely about personalities between me on the one hand and police, prosecutors and judges on the other. I remember a very genial criminal defense lawyer recounting his experience with a Virginia prosecutor where the criminal defense lawyer merely politely said: “I would like a trial, please,” and the prosecutor sarcastically replied: “I am quaking in my boots.” This type of prosecutorial arrogance, and police arrogance, is found too often.
I have no more reason to be unnecessarily buddy-buddy with any police, prosecutors and judges than with soldiers in an opposing army. Sure, it is okay to have beers with your opposing team after a basketball game, but the difference with criminal defense is that the defendant’s liberty is on the line, when liberty has nothing to do with even the most high-stakes sports game. I am happy to be friendly with likable and upstanding police, prosecutors and judges, but police and prosecutors are out to get my clients, and my first commitment is too my clients, and I will not compromise on that commitment.
Convictions for jailable matters not only threaten one’s liberty, but also one’s reputation and even sometimes one’s job and immigration prospects. That means that my criminal defense work is indeed combat of the highest order, whether the case be a misdemeanor or felony, and whether or not much or any jail time is likely to result from a conviction.
Criminal defendants insisting on hiring a former prosecutor should ask themselves why they seek such a lawyer. Although the former prosecutor has experience thinking like the now-opponent prosecutor, is the lawyer still a prosecutor at heart, can that lawyer welcome and adjust well with switching to a criminal defense mindset from having the cards stacked in his or her favor so often as a prosecutor to having so many uphill battles as a criminal defense lawyer, and does the lawyer really expect that his or her former prosecutor colleagues are going to yield an inch or their job security and bar license in the interests of old times sake?
Criminal defendants worried about an aggressive defense’s pissing off the prosecutor, judge and police should stop for a second and ask what their realistic alternatives are to an aggressive defense. I write more here about doing things that might piss off opponents and judges.
Those seeking convictions will love nothing better than a complacent criminal defense lawyer and criminal defendant. Complacency has no proper role in criminal defense. The battle lines are drawn at the moment the criminal defendant is charged with a crime, and from there the battle plans must be made and executed.