Aug 25, 2016 Battling by rattling the opponent’s agenda while keeping both eyes on the prize
Complacency has no place in battle. Prosecutors can become complacent being with the same group of judges day in and day out. I appear before many different judges in several courthouses each month, making complacency for me not even a risk.
Prosecutors can become complacent when statistics say that their offices obtain more convictions than their opposing criminal defense lawyers obtain acquittals. Of course, that statistic only holds because a large percentage of arrestees did commit at least one of their alleged crimes, because too many judges and jurors give the word of police officers more deference than to the word of laypeople (in contravention of their oaths as judges and jurors), and because many criminal defendants will plead guilty rather than risk possibly much more severe sentencing and reputational consequences if convicted at trial. Because my clients often face uphill court battles, I can never be complacent, but must overprepare for victory.
Prosecutors can become complacent with misdemeanor cases, if their office budgets focus on felony prosecutions and if their superiors do not require much preparation for their misdemeanor cases. For my clients, a misdemeanor case is never “just a misdemeanor,” but a threat to their reputation, liberty, sense of self, livelihood (sometimes), and immigration status here and abroad (sometimes).
It cracks me up when prosecutors try rattling my groundedness and agenda by telling me what I already know about the law, discovery and other evidence in the case and my client’s risks of going to trial or by not agreeing to the prosecutor’s pending guilty plea offer. Some get downright condescending and even nasty about it. If I let myself get caught up with such a personality play, I have given over my power to the prosecutor and have taken my eyes off the prize.
It is a given that plenty of prosecutors, police, and even judges will display their hostility, condescension and even game playing to criminal defense lawyers, in the hopes of getting a guilty plea, weakening the defense, or rushing the trial to finish sooner than it should.
For the criminal defense lawyer, the only agenda that is permitted to be rattled is the prosecutor’s, for instance when that rattling happen by the defense lawyer’s declining to consent to postponing the trial on the day of trial merely because the arresting officer reports that s/he is sick (when did s/he become sick, what is the sickness, and was the prosecutor and defense lawyer timely enough notified of the issue?); by the defense declining to wait as long as the prosecutor proposes for a discovery deadline, even though the prosecutor claims “we always do it this way”; and by the defense winning when the prosecutor smugly proclaimed s/he would win hands down.
For the winning criminal defense lawyer, the battle should not be framed in terms of the defense versus the prosecution, but in terms of the criminal defense lawyer persuading the judge and jury. No matter how much a prosecutor is engaging in condescension, sarcasm, and big ego, the criminal defense lawyer must engage in non-ego, fully and effectively battling at every moment and in the moment. No matter how underhanded the prosecutor or police get, and no matter how messy the battlefield becomes, the criminal defense lawyer must keep his or her eyes and fight on the prize.
A great fictitious example of this entire situation comes from Martin Short’s interviewer Brock Linehan character, who returns to his high school with his chest puffed out from his career success, only to find his gym teacher and woman he dated cut him back down to size the way he likely was tauntedly sliced and diced when still a student at the high school.
I remember a former soldier who warned his smirking son “Keep smirking, and I’ll wipe that smirk off your face.” If the prosecutor comes to court with a smirking attitude, the defense lawyer does not need to do anything to wipe the smirk off the prosecutor’s face other than doing the criminal defense lawyer’s job, keeping his eyes on the prize. Through the criminal defense lawyer’s keeping the eyes on the prize, s/he can let the judge and jury wipe the smirk off the prosecutor’s face instead.