NOTE: This is part one of two articles on this subject. Part two is Pausing Before Hiring A Former Prosecutor/Former Member Of The Opposing Army

Corporate law firms have a penchant for hiring former federal prosecutors for their white collar criminal defense departments. A Fairfax, Virginia former prosecutor urges on his website not only for criminal defendants to hire a former prosecutor, but to make sure that the former prosecutor be from his county for prosecutions there. Another local former prosecutor touts his having worked for a “legendary” former chief prosecutor whom I never saw as being sufficiently compassionate nor empathetic about criminal defendants.

Being a former prosecutor neither is an automatic disability for criminal defendants (my teacher Gerry Spence is a former prosecutor and among the greatest criminal defense and civil trial lawyers) nor a guaranteed panacea. A heart transplant patient needs the transplant to take hold, and for the body not to reject the transplant. When a criminal defendant hires a seasoned and accomplished criminal defense lawyer, the defendant does not need to be concerned about a rejected transplant, as opposed to taking a risk with whether a recently-former prosecutor will succeed with the transplant to being a criminal defense lawyer.

Consequently, it is oversimplistic to urge criminal defendants to hire former prosecutors. I say that not out of self interest, but out of reality, and out of dissent with any former prosecutor who insists that criminal defendants hire former prosecutors.

Questions about the value of hiring a former prosecutor include:

– Is the lawyer more passionate and comfortable about prosecuting or criminal defense?  One former local prosecutor went on record in a national newspaper interview that financial interest heavily drove his interest to switch sides to the criminal defense, clearly missing serving the role of a prosecutor.

– How does the prosecutor feel about others’ perception of his or her switching sides? Does the lawyer have any hesitation about diminished bonds with remaining prosecutors and police by going full guns for the defense?

– Does a prosecutor’s network of prosecutors and access to prosecutors’ seminars match up to the quality of a criminal defense lawyer’s colleague networks and criminal defense seminars? If the former prosecutor ran roughshod over justice and civility as a prosecutor, will criminal defense colleagues even want to answer the former prosecutor’s phone call, let alone welcome the former prosecutor into their fold?

– How well will the prosecutor adjust from being able to win a majority of cases as a prosecutor to winning fewer cases as a criminal defense lawyer, needing as a criminal defense lawyer to use wits, constant strategizing, brainstorming with colleagues, and a strong command of the applicable court rules, statutory law and appellate case law? The sheer high volume of local prosecutors’ caseloads does not afford them as much time on each of their cases that I can put into preparing and defending my cases. This means that the former prosecutor — as with all criminal defense lawyers — needs to adjust to dealing with even tedious-seeming minutiae, and the full micro and macro pictures on the road to victory.

A former prosecutor can assert an ability to know the prosecutor and police opponents through having been with the opponent, but General Patton did not have to be a German soldier to beat Rommel on the battlefield rather than instead reading Rommel’s book on military battle. “Rommel, you magnicent bastard- I read your book!,” exclaims George C. Scott as winning General Patton. Whether or not that quote and movie scene are artistic license, the movie’s Rommel quote reminds us that we need not join the dark side to understand and defeat it. In the Patton film, at least, Patton read German military general Erwin Rommel’s 1937 Infantry Attacks before winning a battle in Africa.

Great criminal defense lawyers do not do criminal defense to get social adulation nor admission to country clubs. The passionate, committed, and winning criminal defense lawyer does criminal defense because it is in his or her blood, and s/he thrives with such work.