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Sometimes police, prosecutors and judges want to help criminal defendants. Seek and read those signals

Jan 29, 2014 Sometimes police, prosecutors and judges want to help criminal defendants. Seek and read those signals

With all the uphill battles that so many criminal defendants so often face, they and their lawyers may often feel that everything is about us (the defense) versus them (everyone else).

A healthy dose of skepticism is in order in approaching cops, prosecutors, and judges. Then again, paranoia can destroy ya.

Life and criminal defense is not about us versus them (which is dualistic) as much as criminal defense is about fighting to harmonize imbalanced situations as best as possible.

Once I realize that the distinction between me and another person is in many respects artificial (see here, too), I can better work with that person in trying to resolve a challenge, whether it be criminal defense or anything else. Remain on guard, of course, but not to the point of having overguardedness eat you alive from the inside or outside.

Some cops, prosecutors and judges want to help criminal defendants, of course not always in the way that defendants and their lawyers define it. Here are two recent examples that were helped along by my erasing viewing cops, prosecutors and judges as adversaries, but as people to try to work with in trying to harmonize my clients’ plights:

– At a recent DWI sentencing of a client who had a previous probation before judgment for drinking and driving, I told the judge that I was taking issue with what I saw as the prosecutor’s material mischaracterization of part of my client’s discussion with the arresting officer on the night of arrest before Miranda rights had to be read. The judge interrupted: "You are not helping your client." I correctly took that as a signal that the judge was not going to give my client jail nor any onerous probation length nor onerous probation conditions, but that my talking further might cause the judge to rethink that path. The judge asked if my client had anything to say, and before assuring that my client’s brief words were all he had to say (they were not), the judge proceeded to sentence him, which was another signal that the judge was going to give a favorable sentence. This does not mean that judges never spin criminal defense lawyers and their clients, but we need to use our instincts as best we can. Here, the judge already had the benefit of my sentencing memo and of asking the lawyers follow up questions related to that memo and sentencing. My client had busted his butt with voluntary programs and community service to help me fight for a favorable sentence, and the judge must have seen that active jail time was not going to serve any good purpose.

I could have asked the judge for the opportunity to let me or my client finish speaking, but I had read the judge right, that he was going to impose a favorable sentence. Had I insisted on having me or my client be heard more, who knows whether the judge would have imposed a harsher sentence? Once our sentencing was finished, that freed the judge up for his next matter on the docket, which of value to the judge, lest his docket get bottlenecked.

– On a recent DWI trial date where my client had a rather recent DWI conviction, making this arrest number two, I sought out the arresting officer, who showed sympathy to my client on the incident video. The police officer deviated from the common practice in this particular county of police insisting that lawyers get their discovery from the prosecutors, in this county where discovery is rarely provided before the trial date, which always can be continued to deal with the discovery obtained. He even let me read along with him as he referenced his notes. The cop indicated that he was detached from what the prosecutor did with settlement negotiations, but by the same token, the officer told the prosecutor how polite my client had been with the officer and did not make efforts to exaggerate my client’s words and behavior on the scene. This foregoing backdrop make my discussion with the cop and prosecutor less adversarial and more of a group effort to arrive at a fair result. To be sure, I did not get the ideal result (that being dismissal or a plea to a traffic infraction), but under the circumstances, our settlement was a big accomplishment.

As I have said before, when I remove myself from being seen by police, prosecutors and judges as a barrier to resolving the case, but instead as an aid to such resolution, they can be more open to what I have to say in seeking a resolution, whether the ultimate resolution ends up being achieved by negotiation or trial. I want police and prosecutors to see me as a threat in terms of having an incentive to seriously negotiate with me, but not a threat in terms of not being able to trust me to tell the truth and to fight fairly.

Some of my clients might want me to bark at prosecutors and cops, but barks are ineffectual. Bites are what counts, and bites can be administered with a smile, and well kept jaws and sharp teeth.

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