Dec 26, 2016 When prosecutors and judges want to go to lunch
Recently I was speaking in the courthouse with a former prosecutor about my case discussion with the assigned prosecutor. He suggested that maybe this prosecutor’s negotiation posture was motivated by wanting to go to lunch, where the clock was soon approaching noon. I jokingly expressed surprise that a prosecutor would allow such a motivation to affect negotiations. This lawyer responded: “When I was a prosecutor, I would do that.”
Ah, the things former prosecutors and former judges reveal after leaving those jobs. Not long ago a recently-former prosecutor, unsolicited, told me that when he would learn I was a defendant’s attorney in one of his cases, including when I had a court reporter in tow, he would expect a long trial. I asked him if that ever helped me with negotiations, to which he responded that it helped in my negotiations with him, because he was lazy as a prosecutor, as he described it.
Another former prosecutor said that prosecuting was the easiest job he ever had. If a prosecutor wants to finish work early on a Friday afternoon to hit the tennis court or hiking trail, all s/he needs to do is to offer sweet case settlements to opponents who are in court that day. Of course, looming in the horizon is any concern the prosecutor has about backlash from his or her supervisors. However, prosecutors who already have planned soon to go into private practice will not have as many such worries.
A former judge once offered, unsolicited, his unvarnished view on one of my former major felony clients. With that view, I was happy we proceeded with a jury rather than with a bench trial. Another judge gave his frank and very disturbing view about a slew of criminal defendants, which made me happy that he would soon be transitioning from semi-retirement to permanent retirement from the black robes.
All this reminds us that prosecutors, judges and everyone else are human. When their stomachs rumble with hunger and when their blood curdles at frightful testimony, they are going to have a human response. The best judges and prosecutors temper that response. Not all are always at their best, though. A criminal defense lawyer ignores these basic human instincts at the lawyer’s peril.