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Dealing with Difficult Prosecutors, Judges & Opposing Witnesses on their Place on their Roller Coaster

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Many people wake up feeling ungrounded each morning and awkward in public. They may feel uncomfortable in or about their bodies, clothing, and hair; feel sickly, out of balance with drafty places and stinky venues, under-acknowledged, under-appreciated, disrespected and even ridiculed and despised.

Many people start their day feeling sad, depressed and despondent. Some have a serious ailment, a dying or recently deceased relative, a career path in jeopardy, financial challenges, or a relationship in shambles.

All of the foregoing people are experiencing various levels of suffering.

My work involves serving people feeling disharmony and often suffering, who want to harmonize their perceived imbalanced situations. The criminal law ideally is set up to govern people’s behavior so that they do not cause others to suffer, but instead we have too much of a police state that goes well beyond prohibiting rape, robbery and murder, to criminalizing things that should not be criminal (for instance marijuana, prostitution and gambling), detaining too many presumed-innocent people on no bond pending trial, finding too many innocent people guilty and too many law violators guilty of worse criminal acts than they committed, too often penalizing too harshly in sentencing, and frequently causing all sorts of collateral havoc for such collateral matters as career paths, security clearances and immigration status domestically and travel and work visa opportunities internationally.

Judges want to avoid the profound discomfort of being accused of going too easy on a criminal defendant who proceeds soon thereafter to commit a worse crime.  They also do not want to be embarrassed by too many reversals on appeal and, worse, with published tongue-lashings by appellate judges. Police want to avoid losing job security and promotions for not delivering a significant number of arrests and convictions, in a falsely objective effort to show they are working hard and effectively. They also do not want to be videotaped engaging in misconduct, thus risking their jobs and getting their reputations pilloried in the news and social media. Prosecutors do not want their supervisors to reprimand, demote or even terminate them for being too lenient in negotiations or for losing “too many cases”.  They also do not want them to find themselves as pariahs with their private bar colleagues if they later go into private practice. Not only suffering can be caused by steering their ships between these competing concerns, but neuroses and distrust of others can also rear their ugly heads.

Plenty of judges, prosecutors and police have an overly simplistic “you do the crime, you do the time” attitude. Plenty of them themselves have been victimized by crime or have had loved ones victimized by crime. Plenty are afraid of not doing their share to reduce violent and other crime.

Suffering and focused efforts (at least by good criminal defense lawyers) on reducing and addressing suffering infuse the criminal justice system.

Consequently, I need to recognize the possible suffering in my opponent when I draw the undesirable card of a heartless-seeming — even nasty-acting (which often arises from fear, as all anger does) — prosecutor known to be one of the most difficult for reaching favorable settlement negotiations, and one of the most stone-faced and cold-eared to even the most compelling arguments for hedging our mutual bets or for seeing this case or my client as an exception to the prosecutor’s usual way of doing things with a particular set of criminal charges.

I know one prosecutor who often will barely even grunt a hello before starting to discuss what has to be discussed about the case. He seems to be on an emotional roller coaster, like so many people are. For my clients’ benefit, I focus on effectively engaging my cases’ judges, prosecutors, opposing witnesses, and juries in the place where they are, whether that be on a roller coaster — without feeling the roller coaster, but knowing that the other person is — or on smoother ground. The roller coaster’s originally being an amusement ride, I can even keep my own joy and harmony going even when a prosecutor tries throwing me off the roller coaster, and even the most heartless seeming prosecutor sometimes will let his or her guard down and join in the amusement.

My friend, trial law brother, and angelically effective brainstorming adviser Chris Flohr signs his emails “Peace, Love and Understanding,” a successor variation to the late Don Cornelius’s sign off of “Love, peace and soul!” Chris’s sign off is an important reminder for dealing with even the most angry and underhanded opponents. It is important to keep peace in ourselves at all times, because reacting with anger to the opponent weakens us, and our peacefulness can help open the hearts and minds of our opponents. Love of the brotherly love sort to me is about the benefits of powerfully practicing lovingkindness/metta even to my most seemingly arch-opponents. Understanding is about crawling under other people’s hides, even when doing so can be very uncomfortable (as an extreme example, imagine crawling under the hide of Hitler, which my teacher Jun Yasuda did on the spot ten years ago) and time intensive, to get to the heart of settling disputes and battling more powerfully.

Added to all the above is affording opponents, judges and jurors the space and feeling of security either to come closer to giving me what I seek or at least for me to reduce the risk that they will try to throw dirt in my eyes.

Throughout the process of recognizing others’ suffering in defending my clients, I must remember that others’ suffering can influence plenty of people to do harmful things. Therefore, I will inject powerful fun into my battles, but also assure that in the courtroom battlefield, compassion will never make me hesitate to pull the proverbial trigger in my fight to harmonize my clients’ disharmonious plights.