Of prosecutors, power, high horses, and the magic mirror
In all state-level courthouses where I practice, prosecutors take over a table in the courtroom well within feet of the judge, unless a jury trial is scheduled there. Depending on the courthouse, judge and circumstances, a criminal defense lawyer who tries entering the well before his or her case has been called and while the judge is on the bench — even if to speak with or pass a note to the prosecutor — can get verbally zapped by the judge or court security personnel.
Since when are prosecutors and cops (who routinely bypass courthouse security, armed at that) higher beings, respectively, than other lawyers and other witnesses? THEY ARE NOT, and jurors should not get any sense or image otherwise. Jurors, for instance, should see prosecutors and criminal defense lawyers treated the same by courthouse security, judges and courtroom personnel. Jurors should see police required to relinquish their weapons upon entering the courthouse. Jurors should not hear judges refer to prosecutors as "the government", "the state", "the commonwealth", or "the people". They are just lawyers representing their clients.
Prosecutors and police are civil servants with tremendous power, including the power to decide who to arrest or not, what crimes to charge people with, whether to prosecute or not, the settlement and plea offers to make, and the sentences to seek. Their duty is to serve their oaths and the public, and not to let their power go to their heads or to feel they are sitting on some high horse.
A public defender colleague once opined — unfortunately with more than a few grains of truth as to many, but not all, prosecutors — that prosecutor are hatched rather than born, in their twenties, with limited real-life experience (hurdles to their empathetic and common sense abilities), a law degree in one hand, and the power of prosecuting. Fortunately, many upstanding prosecutors are out there, ones who do not bark to try to cow criminal defense lawyers (I don’t cow, but then there are prosecutors who, wrongfully, speak in cowing terms in front of defense lawyers’ clients, without the lawyers’ permission for the defendant to hear the prosecutor, which does not square with the ethics rules), who maintain an eye on doing justice and serving the governing law over getting convictions and keeping job security and cozy relations with police and colleagues, who speak as humans, and who can agree to disagree.
Power is intoxicating. Power too frequently gets abused. POWER MUST BE TAMED.
Before winning a recent Virginia drunk driving trial in a courthouse where I had been just once before, I followed the local custom of walking up to the prosecutor in the courtroom well while the judge was on the bench and telling him my client’s name. The prosecutor asked what I wished to discuss, and I said: "Let’s see if we can settle this case," where I knew my client was amenable to amending the charge to reckless driving but not to DWI. The prosecutor looked at me with seemingly cold eyes, and replied: "Do you want me to tell you THE plea DEAL?," as if he was trying to convey that "I call the shots here" to a lawyer, me, who he was perhaps trying to test, not having seen me around much. When I came back to the prosecutor with a reckless driving offer after having conveyed the prosecutor’s DWI plea offer to my client, the prosecutor had started lightening up. He saw that I knew the lingo of the case, trial advocacy and the relevant law and procedure, and he started talking to me more as human to human, knowing there would be a trial that morning, and addressing such logistics as the expected arrival time of the breath technician. A metamorphosis had taken place. How much of that metamorphosis was my letting go of irritation at my first interaction with the prosecutor, how much of it was a change in him, and how much of it was a change in us both?
Take-it-or-leave-it negotiating efforts are common with too many prosecutors, to their own detriment. Such negotiating approaches might intimidate unrepresented criminal defendants (whom prosecutors should support having a chance to get a court-appointed or retained lawyer), green lawyers, and more experienced lawyers who do not belong doing criminal defense, but such efforts are useless with qualified, experienced criminal defense lawyers, and speak volumes negatively about the prosecutor. To be sure, some prosecutors’ hands are tied by their offices about offering anything other than one type of plea or negotiation offer in a particular case, but even there the prosecutor can speak more like a human and say: "Jon, you know my hands are tied by my superiors not to offer anything better than I have." Of course, office policy is made to be amended and skirted at times.
Negotiations are best pursued by negotiating on and discussing goals rather than positions, as underlined by Fisher and Ury in Getting to Yes. In criminal defense, I negotiate on a position when telling a prosecutor that my client offers a take-it-or-leave-it deal to plead guilty to an amended charge of drug paraphernalia from an original charge of marijuana possession. I negotiate on a goal when telling the prosecutor that my client is flexible about finding a disposition that avoids a marijuana conviction, telling the prosecutor that a marijuana conviction will deep six my client’s federal student financial aid. When I encourage prosecutors to negotiate based on goals rather than positions, many of them look at me as if I had fallen from another planet. Such responses mean that they have not read Getting to Yes, which should convince any negotiator that they get closer to a winning negotiation by negotiating on goals rather than positions. Getting to Yes is a quick read, and, if not considered an impermissible gift and if not to be tossed in the garbage bin, I would be delighted to provide a copy of the book at my own expense to every prosecutor’s office that I deal with.
What is going through prosecutors’ minds as they deal with me? Recognition of all the other cases they have on their plate? Fear of losing? Wondering whether they can trust me not only with my words and deeds, but to trust me not to unnecessarily make them look bad? We all have reputations, whether or not deservedly earned. As a public defender lawyer two decades ago, I started out believing that I was on the side of the angels and that prosecuting and policing inevitably involves too much trespassing on individual liberties. That probably came out in my reputation with some or many. By now, I recognize that it is essential for me to be powerfully serene and enchanted in the presence of once-detested opponents, and to have compassion for them, me, my clients, and everyone else. That makes me stronger for my clients and myself, not weaker.
The magic mirror is always at work. When I expect a particular judge, prosecutor, or police officer to display the worst behavior that a human can display, why will they make an effort to do any better than that? All humans are able to do both great and vile things. My job includes encouraging and persuading them to grow beautiful flowers rather than for them to throw in my direction the dung in which those flowers grow. However, my job also is not to kiss anyone’s butt. If they throw dung, I am already fully prepared
Consequently, it is wise to trust prosecutors and cops to have the ability to do justice, but essential to be on guard for them to do the opposite. When putting my foot down with unfairness and injustice from prosecutors and police, a gradation approach is best, including such progressive actions as the following: a smile and a suggestion that we get back on track; a non-patronizing showing of empathy about the opponent’s plight; a suggestion that I am here to help the opponent to the extent that our mutual interests overlap; a reminder that I am here to zealously defend my client’s rights; talking to colleagues who might have a better read on resolving the matter with the prosecutor; talking to the prosecutor’s supervisor if talking to the prosecutor does not resolve the matter; a suggestion that it is better that we try to iron out our difference without seeking judicial intervention; being selective in seeking judicial intervention, and showing the judge that I took pains to avoid needing to seek judicial intervention; and, if the prosecutor has made an egregious or mandatorily reportable ethics violation, to go to the ethics authorities (which I have never had to do yet in my career). I much prefer to resolve issues directly with my opponents, and it is rare for me to feel a need to go further than that.
Recently, I asked a Virginia prosecutor in a DWI case if he would agree for me to tell the police officer in the case that the prosecutor had no objection to my talking directly to the officer to clarify some of the discovery that the prosecutor was not completely clear on, seeing that plenty of police officers where I practice in Virginia are reluctant to speak with me without the prosecutor’s greenlight. The prosecutor replied that I could freely speak with the officer, because the prosecutor had no right to tell the officer not to speak with me; unfortunately, there are prosecutors who do not realize that.
Speaking of ethics, prosecutors are obligated to follow the same set of ethics rules that apply to all other lawyers, despite former U.S.. Attorney General Dick Thornburgh’s opinion to the contrary. State-level prosecutors tend to have heavy caseloads. Their heavy caseloads, however, are no excuse to not understand or to cut corners around ethics rules. Their heavy caseloads are not licenses to act with arrogance and impunity.
As to the prosecutors who are permitted a table in the courtroom well, I much prefer walking into court with just one or two cases — without my own table — fully prepared for those trials, as opposed to the prosecutors’ juggllng so many cases and witnesses day in and day out.
Trial battle is war. War involves interacting and engaging with people. People’s actions run from the upstanding to the vile. My job is to work powerfully with and around those realities, and not to get upset or weakened over them.