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Why treat prosecutors for happy hour?

Jul 25, 2008 Why treat prosecutors for happy hour?

Bill of Rights. (From the public domain.) 

When I joined the Maryland Public Defender’s Office from a law firm serving financial institutions and transportation companies, something seemed very wrong: Conviviality was the game of the day in this particular county between a slew of prosecutors, criminal defense lawyers, and cops. It was similar to the conviviality that did not concern me so much, which was among courthouse personnel and many judges together with the lawyers making appearances there; that spilled into the conviviality among prosecutors, cops and criminal defense lawyers.

Who was missing from all this conviviality? My clients — my clients whom too many prosecutors and cops and some judges and even some criminal defense lawyers would degrade, dehumanize, and disrespect. Most cops and prosecutors I speak with — and probably plenty of judges — assume my clients are guilty, and not just in the lawbook sense of guilty beyond a reasonable doubt, but guilty, period. I hear the frequent laughter of cops, prosecutors, and sometimes other criminal defense lawyers with defendants at the butt of their jokes. A late judge at a guilty plea settlement conference in his chambers (the conferences were only among lawyers; my client was waiting in the hallway) had a good belly laugh reading the criminal statement of charges: "Ha! He carried the crack rock under his tongue." The judge was talking as if my client was guilty as charged — no chance the cops had it wrong — and was having a good laugh at my client’s expense; I concede that the judge then proceeded, as expected, to say there would need to be a sentence at the lower end of the sentencing guidelines if there were a guilty plea; under the circumstances, it would have been a fair sentence, all things considered.

On another day in court, after my client’s case was finished, a courthouse deputy sheriff and the opposing prosecutor had a good chuckle as my bewildered client got handcuffed by the deputy for an alleged open warrant. Praised be the courtroom bailiff who later talked to me about it and decried turning such an arrest into an eagerly-awaited joke.

A fellow public defender lawyer once tried giving me an example of having good relations with prosecutors — "Jon, we have to deal with these prosecutors every day" — by praising a more experienced public defender lawyer for laughing with one of the most heartless-acting prosecutors about the bizarre happenings allegedly involved in a theft case that had just finished.

Suffice it to say, my bright-eyed and bushy-tailed idealism of joining the public defender’s office did not have such conviviality in mind. I probably was better suited to join the District of Columbia Public Defender Service, where I doubt much if any joint lunchgoing happens between public defender lawyers and prosecutors, who are employed by the same federal Justice Department that has given us such "leaders" as Alberto Gonzales, Ed Meese, and George Mitchell.

Should I exclude prosecutors and cops from my time at lunch and after-hours activities? The prospect is tempting. How would I feel about a client seeing me breaking bread with the same prosecutor or cop who is trying to get my client locked up, particularly in instances where I feel the prosecution is based on false evidence, an effort to obtain a disproportionately severe sentence, or a law that I feel should be stricken or heavily decriminalized in the first place (e.g., I want the legalization of marijuana, prostitution, gambling, criminal libel and obscenity and the heavy decriminalization of all other drugs)?

It is essential to treat others on their own merits and not to stereotype. Certainly many of my favorite criminal defense lawyers have prosecuted, including Gerry Spence and my supreme trial law guru Steve Rench, who included prosecution work while in law school, who said he had no problem prosecuting unless it was the death penalty, and who once told me he prefers representing the underdog (see the name of this blog). Okay, then, how about if I tell prosecutors and cops who seem otherwise likable and honorable that we can revisit whether to break bread together once they are no longer cops or prosecutors?

Last week, an email went out to local criminal defense lawyers inviting them to a happy hour this evening (when I will be indisposed no matter what, although I would make an exception for a happy hour tonight with the likes of SunWolf / La Loba, Tony Serra, or Charles Abourezk) with the county’s prosecutors, and soliciting donations up to $50 each to cover the prosecutors’ drinks, pointing out that the newer prosecutors do not earn much (well, at least in their suffering economically, they might be able to transfer that to understanding the suffering of my clients). My first reaction, and continued reaction (which I have only shared thus far with another local lawyer, but now this blog entry shares it with everyone), was that it sounds fishy to be buying anything for prosecutors. First, paying for prosecutors’ happy hour refreshments creates dissonance in me as to my clients’ role in the mix. That is right, no clients were invited to the happy hour. If I went to this shindig at a tapas restaurant two blocks from the county courthouse, I would think it a good idea to invite some of my clients, to humanize them (while assuring they do not discuss their cases), to respect them rather than having a private get-together with the opponents of them and me, and to highlight that the business as usual of marginalizing criminal defendants is unacceptable. Second. I wonder how such purchases jibe with bribery statutes, even though I do not believe such behavior should be made criminal.

On the other hand, maybe this gratis happy hour for prosecutors is a good idea, at least if all the defense lawyers drink near beer, virgin sangria and soda pop, while the opposition drinks scotch and Sams, ready to be arrested and prosecuted for drunk driving by the cops, who have a station just one quarter of a mile away. Do any fair trade laws or legal ethics rules prevent me from billing a premium for doing such defense, as a sort of fine for all the misery most prosecutors cause my clients? I doubt an arrested prosecutor would come to me instead of going to a former prosecutor. Then again, I have had ex-cops, military folks, political conservatives and other so-called law-and-order people hire me.

Certainly, it is important to know the opposition. However, I have no interest in paying for the opposition’s drinks while getting to know the opposition, and I do my best to keep in mind how my clients would react to seeing me with a group of criminal defense lawyers and prosecutors at a happy hour. I would much more enjoy going hiking or canoeing with a client. Jon Katz

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