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The prosecutors approaching their jobs as stepping stones, careers, aimless wandering, and fascist endeavors

Fairfax, Virginia, criminal/DWI lawyer pursuing the defense since 1991

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One day in 1992, a novice car salesperson called me after I had already bought the same model elsewhere, after his dealership did not bother telling me until after I made an offer, that the one unit with my preferred color had been damaged during delivery. Or was that in truth damage caused during a customer’s test driver. The novice salesperson’s sales manager then pulled shenanigans to try to get me back to try to sell me another unit. Unfortunately, when buying my last two cars last year, I learned that little had seemed to change in the way that too many car salespeople can talk and act offensively and even with double talk. Is it something in the water, or the nature of cutthroat competition?

“I feel bad for you,” I said to the novice salesperson when he called after I already had bought my car. “Why?,” he asked. “Because you are caught in the middle between your management and customers.” Did his reply evince doom to his career?: “Sometimes I feel that way.”

One day a local news reporter called seeking my views on how the defense should proceed in a sensationalized murder case. For years, I have recognized how too many news organizations over-emphasize and often sensationalize some criminal cases over others, often focusing on the cases involving more privileged defendants and alleged victims. I told the reporter my irritation about and disagreement with that, and was surprised that she let her hair down about her similar concern.

People are born human before choosing their profession. They can end up letting their hair down, and can be persuaded on the human level regardless of their profession, including prosecutors, of course.

One approach to persuading prosecutors is to consider why they became a prosecutor in the first place. The word is out on the streets that if a lawyer wants to become a litigator with a prestigious large corporate law firm, one should buck to attend a prestigious law school, get high grades, and get a coveted spot on the law school’s scholarly law review or law journal (all of the foregoing are important for any kind of work with a large corporate law firm); get on the law school moot court team; obtain a coveted law clerkship after law school, for a year with a federal trial or appellate judge; and work for a few years as an Assistant United States Attorney through the Justice Department. The alternative advised approach is at least to get a job as a state-level prosecutor for a few years, to be marketable to various law firms after such a gig. Unable to stomach the idea of prosecuting people, I instead learned criminal defense through being a Maryland Public Defender lawyer for five years in the early 1990’s.

Why did the particular prosecutor on my particular case become a prosecutor? As a stepping stone to transitioning into private law practice or to seeking to switch from state-level prosecution to being a Justice Department lawyer? Because the prosecutor feels prosecuting is his or her dream job, and wants to stay in that line of work so long as the income justifies it? Because the prosecutor fell into the work, not sure what type of work s/he wanted in the law? Because the prosecutor is a fascist? Those are the main models of what motivates a prosecutor to prosecute.

The prosecutor using his or her job as a stepping stone may want in the present moment to start building bridges with his or her opposing lawyers, to the time when the prosecutor moves to the private sector. This category of prosecutor may be easier to speak with than the other categories, and more open-eared and open-minded to discussions on negotiations, trial scheduling and planning, and providing case discovery. Prosecutors wanting to become a judge in the future might also wish to build bridges with opposing lawyers. This stepping-stone prosecutor category may be more open-eared to defense counsel’s talk of injustices in the criminal justice system or in the particular prosecution, which so many ex-prosecutors at one time or another publicly acknowledge. Some may feel uncomfortable, for instance, that a particular defendant is being held without bond pretrial, or that another defendant’s career can be destroyed if convicted of the particular accusation.

I cannot fault a prosecutor for using his or her job as a stepping stone, as much as I personally could not stomach the idea of prosecuting, myself. I would hope that the stepping-stone prosecutor would be the most likely to put his or her foot down when his superiors, colleagues, or police ask or direct him to do something that is beyond his oath and justice, even if that puts the prosecutor’s job on the line.

Some prosecutors take the job thinking this to be the dream job, and not considering what they will do when their financial obligations increase and they want to earn more income. Granted, some prosecutors offices pay well, as government jobs go, with assistant United States attorneys apparently being among the highest paid federal prosecutors. The prosecutors who intend to be career prosecutors might maneuver their working approaches to be able to survive changes at the helm of their offices. When they are trying to steer a steady path in their career, they might be more difficult for the defense to persuade than persuading the stepping-stone prosecutor, but might be stable enough to listen closely to the defense’s proposals, and to respond reasonably.

Some prosecutors take the job because they do not know what else they want to do. They might think they want to learn litigation. They have heard that prosecutorial experience opens more future job doors than public defender experience. Nevertheless, if they are not sure beyond that about why they became a prosecutor, they are not very grounded. Therefore, they can be wild cards when the defense deals with them. An opponent who is not well grounded is a weaker opponent, who might devote less time and attention to developing and honing their craft.

Then we have the fascist prosecutors. At some point in their lives — whether or not they have been or felt that they or their loved ones were victims of serious crimes — determined that we need tough law and order in society, with police and prosecutors enforcing the concept of “You do the crime, you do the time,” with little concern about all the innocent people who get convicted either because the jury or bench trial judge makes a wrong decision, or because the innocent defendant pleads guilty to avoid an even harsher sentence if the defendant loses at trial.

Even the fascist prosecutor can be persuaded. Everyone can be persuaded. Why is the fascist prosecutor so inflexibly about law and order? Because s/he fears taking a more flexible approach, or leaving room for a world that is not so black and white? Because s/he thinks that taking such an approach will better help the prosecutor’s job security and relations with cops?

Once again, we all are born as humans before we choose our professions. Even the fascist prosecutor has humanity and feelings somewhere down there. Defense lawyers can get through to them and everyone else, by recognizing them as the humans they are, having compassion for them, and making it as clear as day through actions, experience and reputation that the prosecutor has two choices: Either work with the defense lawyer in trying to negotiate a resolution of the case, or else face a formidable foe, force and time challenge from the defense lawyer by going to trial.

This ain’t no college wrestling match where the biggest threat is being pinned down by the opponent after he tries shoving his stinky, hairy armpit in the opponent’s face. Criminal defense is war, and no criminal defense lawyer should expect any kindness nor mercy from the opponent. We criminal defense lawyers need to see the matter from the prosecutor’s perspective and use that insight in every stage of the defense, including negotiations and trial, and most of all, we must do excellent battle at every turn.