Aug 04, 2016 Negotiating and talking with prosecutors in the right zone/circle
Similarly, it is ideal for me to speak and negotiate with prosecutors in a proverbial circle/zone. The prosecutor instead might insist on handling such conversations on the court date in their common fashion of sitting at a table or desk inside or outside the courtroom, with police and other lawyers flowing in and out — and even heckling or expressing irritation (at my alleged audacity to seek a resolution more lenient than a police officer claims reasonable) from the proverbial peanut gallery assembled in the room. Of course, some conversations with opponents need to take place before the court date, but at least with misdemeanor cases, prosecutors in various jurisdictions often are without sufficient information about the case until the court date, or may not have even been assigned the case more than one day before court.
The prosecutor holds court in the foregoing fashion due to a combination of personal or institutional habit, comfort, not having sufficiently considered doing things a different way, not wanting to displease police by keeping them out of the conference room, or desire for time and situational control. Whether or not the prosecutor will agree to talk with the defense lawyer outside of the presence of others, the defense lawyer can focus the prosecutor on the case in a way that still approaches the ideal of talking one on one without interference of others nearby.
Ideal for my discussions with prosecutors is to talk one-on-one, with no territorial advantage by the prosecutor. Frequently, I suggest to the prosecutor that we can get a lot more done in a more efficient and beneficial fashion for our mutual sides by talking away from others’ hearing. If that does not work, the next option is to reform the psychological and mental setting into the same situation of the defense lawyer and prosecutor paying full attention to each other, without being distracted by the other people in the room.
Numerous prosecutors, at least for misdemeanor cases, are accustomed to quick conversations with defense lawyers, often offering cookie cutter case settlements, refusing to hear counteroffers or modest suggested modifications to their offers, and refusing to consider what the defense lawyer has to say about the strengths and weaknesses for each side in the case, and the individualized factors of the case and defendant that justify deviating to a more favorable negotiated settlement than the prosecutor is ordinarily accustomed to for such a case and case factors. The concept for many such prosecutors is “take it or leave it” negotiating, and either to settle the case without much discussion or go to trial.
Such an approach by the foregoing prosecutor will not work if all criminal defendants entered pleas of innocent/not guilty. In fact, if only not guilty pleas were entered for days on end, the courthouse would soon grind to a halt, and the judges would express their irritation at the situation and even start getting proactive in offering to get involved in settlement discussions between the opposing lawyers.
Once a prosecutor knows that a defense lawyer is fully ready to go to trial, that the trial will take a good amount of time, and that the defense lawyer is level-headed in pursuing case negotiations, the prosecutor will be more willing to fully discuss and negotiate case resolutions.
Once the criminal defense lawyer gets the prosecutor into the proverbial pretrial sparring circle, the battle is now basically between the defense lawyer and prosecutor. Gone now are any efforts or ability by the prosecutor to set off booby traps, unlevel playing fields, or anything else other than clean sparring between the lawyers.
This still is sparring, and invites each opponent to inflict substantial (and of course legal) harm on the other’s side as needed. It is part of the criminal defense battle. When the criminal defense lawyer comes to court fully ready for trial combat, fully focused on the battle, and with the best taijiquan attributes (balanced; without tension, so that the powerful energy flows and gets targeted freely and well; well-rooted into the ground and the situation; and with the lawyer’s energy well gathered and well directed), the lawyer is best ready to succeed whether through negotiations backed by trial battle readiness, or by trial.
Jon Katz is a Fairfax/Northern Virginia criminal defense lawyer with twenty-five years of experience pursuing the best defense. To schedule a confidential conversation about your case, please contact Jon’s staff at 703-383-1100.