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Lessons from recent challenging experiences with a judge, prosecutor and probation agent

Oct 02, 2014 Lessons from recent challenging experiences with a judge, prosecutor and probation agent

One of the beautiful things about trials by jury is that they can offset trespasses by judges, prosecutors, and prosecution witnesses, but only to a point. Unfortunately, where I practice law, criminal defendants in federal court and the District of Columbia Superior Court ordinarily are deprived of a jury trial option for matters not carrying a risk of over six months in jail, and a Virginia misdemeanor defendant gets no jury trial before being convicted in District Court by a bench trial or plea of guilt or no contest. Moreover, plenty of criminal defendants where I practice pause before seeking a jury trial on a misdemeanor when realizing that they risk higher penalty stakes and attorney fees before a jury than for a bench trial.

It can be tempting for me to berate a prosecutor, police officer, and probation agent when they are urinating on the Bill of Rights with the very tax dollars that pay them. With judges, professional ethics and contempt rules require lawyers to be elegant in words and tone of voice when conveying that a judge has urinated on the Constitution. Civility rules require me to be civil towards prosecutors and other opposing lawyers. Rules against conduct unbecoming a lawyer require me to properly address everyone else.

So there we have it. Even when judges, prosecutors and opposing witnesses are trespassing over a lawyers’ client’s rights, the lawyer is required by governing rules to be civil at all times. Rather than civility rules weakening lawyers’ persuasiveness, such rules, when followed, enable the lawyer to summon the power of compassion and passion in the course of persuasion.

No matter how experienced and skilled even the most polite lawyer becomes, the judges will exist who will unjustly give them a hard time. I remember a universally well regarded trial lawyer recounting how he was in the United States Supreme Court one day during oral argument on a matter he successfully assisted on, and the next day was being yelled at by a state administrative law judge, largely in the shadows, with but an audiotape memorializing the yelling.

By now, I know the right approach to dealing with difficult judges, prosecutors and others, but applying this approach sometimes can be particularly challenging. The path is simple; applying the path is profound. Key here is to take personal responsibility for all challenges and to focus on looking inward for the solution rather than assessing external blame; to apply the power of zero; to be powerfully calm in handing the challenge; not to let others set the agenda for my emotional nor
tactical reaction to their actions; and to find a way to inject powerful compassion (for myself and others) and play into everything I do.

Here is how I dealt recently with three challenging criminal defense scenarios, to
differing levels of success in applying the foregoing approaches to handling hurdles with others:

– A judge during a bench trial repeatedly appeared hostile to some of my trial approach arguments, particularly some of my more novel ones. He brusquely interrupted me several times, decided his interpretation on at least two critical areas of evidentiary law was black-letter correct (I strongly disagree with that black letter view) without allowing argument from me. He appeared not to adhere to the idea that respect is a two-way street. It is a good thing that I kept my wits and cool with this judge, lest I weaken myself and not effectively advocate for my client.

This judge convicted my client but gave him a suspended sentence without onerous probation conditions and no worse a sentence than any other first-time convicted defendant would get for such a case. The following are among the ideas that stand out from my experience with this judge:

— I believe I succeeded in using the taijiquan approach of relaxing and sinking in dealing with the judge’s barbs, rather than weakeningly stiffening up with anger about the judge.

— This was my first trial with this particular judge. Now that he knows that I know how to try a case — and efficiently, at that — and that I know the applicable law, he might be more inclined to let me try my next case with him with less unnecessary interruption.

— Some of my novel arguments to the judge might have sounded hard to swallow to this judge, but as he lets those ideas ferment further, he might rule my way on such issues in the future.
— One judge who a few years ago firmly stated to me during a bench trial that if I persisted with a particular approach we would be there unnecessarily all day — which I assured him would not happen — ultimately realized that my strategy was being pursued with time efficiency, and forever after has treated me with full respect from the bench, giving me reasonable room to litigate my cases. Judges are more inclined to lighten up on lawyers who demonstrate that that they are capable, honest, and efficient with their courtroom time, without the lawyers needing to sacrifice their power and effectiveness.

– After court recently, a staffmember at the probation office’s front desk sounded like a heartless, damned bureaucrat at best in directing orders to my client who was merely there to register to complete a simple, short condition of his misdemeanor conviction. I told him it was unnecessary for him to come at my client in this way, and let him know I did not appreciate the way he was talking. After he and I traded words, in a calm voice, he advised that I settle down, and turned to his next matter while we waited to see a probation office staffmember to handle what we had come to handle. We did not need to deal with him further. Here are some observations:

— in dualistic fashion, I let myself get pissed off that some damn probation bureaucrat, as I viewed it, was abusing his position, unnecessarily at that, more in line with the Soviet Union than the United States. Certainly it is important that government employees not act like the KGB. However, getting pissed off weakens the pisser, so getting pissed off is not an option.

— This is an office where I never before had complaints with how any staffers were doing their jobs. Had I expected shoddy actions and words from the staffers, I would not have noticed this particular staffer’s actions as much. Then again, a courthouse clerk aptly and recently reminded me in her automatic email signature line: “Be kind to everyone. You never know what’s going on in their life…”  Here I could have quietly approached the staffer, introduced myself, asked how he was doing, and suggested that it would be great to start off on a more positive footing, in sync to what I was accustomed to with his office. If he responded kindly, great. If he responded other than kindly, at least I tried, and that may have quieted him down for my subsequent dealings with him.

– I recently dealt with a prosecutor who is rather new, and has not yet shown he is endeared to the need for prosecutors to seek justice, not merely to convict. The prosecutor and I exchanged words that neither of us was pleased with the other on an important point. Later that day, I reflected that this same prosecutor had earlier graciously accommodated his schedule for a matter I needed to handle. I recognized that it would not disempower me to email the prosecutor my thanks for that kindness, and my suggestion that we return to that point in our dealings with each other. The prosecutor emailed me back his appreciation for my reaching out. At least that means this prosecutor and I will be able start fresh with each other next time.

In the end, circumstances are neutral. As Ihaleakala Hew Len says, there is no “out there” for the mind. If that is
so, we can create our own world in many ways. At the very least, as Wayne
Dyer says, “[I]f you change the way you look at things, the things you look at change.” I agree with Wayne’s related title message Change Your Thoughts – Change Your Life.  (See Wayne’s related video.)  Essential is the ho’oponopono lesson of taking personal responsibility over circumstances.

That does not mean that I am responsible for the happening of mass murders, natural disasters, or government oppression (although we do have the power of the vote and of appealing to the courts, the public and government for the government to do the right thing). It does mean that I will get stuck in dealing with such huge challenges if I merely curse the darkness of the situation rather than lighting a candle to transcend the darkness. Upset judges, fascist-seeming bureaucrats, heartless-seeming prosecutors, and abusive cops do not set my agenda for working to make this world a better place. I will engage them as I need in fighting for justice, but will not let them get me upset or drag me down, as upset is optional.

The battleground is my playground. Black robes and business suits cannot change that, as Steve Martin shows us while donning a suit himself.

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