NOTE: This is part two of two articles on this subject. Part one is The illusion of needing to hire a former prosecutor for criminal defense
Criminal defense is a calling. Those suited for the calling thrive on defending their clients, and are right at home doing whatever is necessary to pursue victory for their clients. They are equally comfortable in court, at jails and prisons, visiting incident scenes (no matter how gritty the neighborhood), and tracking down and speaking with witnesses. They truly care about their clients, delight in each “ah-ha” moment that brings them closer to victory, and revel as much in today’s victory as in their first victory. This calling translates into fighting like hell, and transcending the concept that a great lawyer argues both sides of a case equally well, into arguing even better for the criminal defendant due to the lawyer’s deep devotion to criminal defense.
Plenty of criminal defense lawyers — even competent ones — do not feel much of a calling. Some fess that up to me when telling me insincerely that they are “living the dream” or otherwise are not particularly excited about what they are doing as lawyers.
Some prosecutors speak against criminal defendants with such contempt, venom and near mouth-frothing that when I ask them how they will adjust in the future to representing criminal defendants when in private practice, they insist that they will not handle such cases. Dealing daily as a prosecutor with police, complaining witnesses and prosecution witnesses does not automatically translate into a good fit for criminal defense.
One former prosecutor, since passed away a few years ago, who did seem to take fine to the transition to criminal defense (starting around the mid-1990’s) told me how much criminal defense had opened up his eyes to all the injustices against criminal defendants in the criminal “justice” system. Better late than never for his eyes to have become opened in that fashion. When he was a prosecutor, I knew him to be kind and soft spoken, and he seemed the same as a criminal defense lawyer.
My teacher Gerry Spence — whose Wyoming ranch I was at for a month for the 1999 Trial Lawyers College — is a great lawyer, including for criminal defense. Gerry took to the calling, after having been an elected prosecutor in the 1950’s, followed by being a go-to private lawyer for corporations, followed by sometime in the 1960’s resolving that he would from thereon only represent individuals, and small companies against large ones. I am still not sure what motivated Gerry to run for chief prosecutor soon after law school in the first place, unless as a career stepping stone or a way to learn to try cases, nor why he included a focus as a prosecutor on closing down houses of prostitution when his own autobiography Making of a Country Lawyer confirms his prior penchant for frequenting such establishments as a customer.
As a private practitioner, Gerry took on an appointment to prosecute a capital case even though he claimed to have been opposed at the time to the death penalty. Gerry’s referencing me to his book Gunning For Justice to answer this inconsistency did not satisfy me in that book.
Nevertheless, Gerry knows how to spin persuasive and winning magic before a criminal and civil jury, with Geoffrey Feiger’s and Imelda Marcos’s jury acquittals as examples. His book How to Argue and Win Every Time and the approach of the Trial Lawyers College are roadmaps to how he wins. Gerry cannot win in court merely by having a drive to win, nor can any other lawyer. Gerry must first believe in his client’s cause and deeply care about his client’s cause. He must then throw his whole self into defending his client. He reverses roles with his client, so that he can even see such a lampooned client as Imelda Marcos for her simple beginnings. He can humanize a client charged with a brutal murder, by starting with knowing the client starting from his very troubled and unloved childhood. Gerry has felt the depths of pain, and instead of running away from the pain, has faced it eye-to-eye and turned his pain into the very essence of his strength as a lawyer and more importantly as a whole human being.
Being a criminal defense lawyer ordinarily is far from the first thing that gets them invited to country clubs or social events. The work often is solitary and unpopular with many. Popularity means little to me. Serving my clients means the world to me. Here is a glimpse about why criminal defense is a natural path for me.
Not being able to stomach the idea of prosecuting — even though many criminal defense lawyers encouraged prosecutorial experience on the path to criminal defense — I served indigent criminal defendants as a public defender lawyer in the first half of the 1990’s. Both public defender and private criminal defense work is highly rewarding. Adding to the rewards of public defender work was serving people who could not themselves afford a quality attorney.
Consequently, the concept of seeking out a former prosecutor — one who used to be a member of the opposing army, training his or her weapons on criminal defendants while working in tandem with police — to represent a criminal defendant is the wrong question. The better question is why the lawyer practices criminal defense (and money best not be the primary motivating factor), and whether and why the criminal defense lawyer will stick with and fight like hell for his or her client through thick and thin, through all the battles, and for the entire war on behalf of the client.