Wednesday, January 16, 2008

on being a public defender: reasons prosecutors make me scream

Most defense attorneys believe that, in general, prosecutors are unjustifiably arrogant about their roles and their individual capabilities.  I've become accustomed to the bravado of the courtroom and accepted the fact that they think the same of us.  Really, it's not personal.  We're just doing our jobs. 
But a surefire way to quickly and vehemently enrage me is to make it personal.  And when a prosecutor personally seeks me out to admonish me about how to represent my clients, violence ensues.
It often goes something like this:
P:  Why won't your client take a plea?
D:  He's not guilty.  He has witnesses.  As I've told you 4 times before, no plea.
P:  Ok, so what if I drop the plea down [one more notch]? 
D:  Go ahead.  Still not guilty.  Still has witnesses.  Still wants a trial.  Still no plea.
P:  But I just don't understand why he won't plead to XYZ.  I mean, you know he did it, and you have ALL THESE OTHER CASES WHERE YOUR CLIENTS REALLY NEED YOU.  It just doesn't seem right to waste our time and the court's time with a case like this.
D:  [jaw drops. violence ensues.]
I've had prosecutors tell me, several times, that I am doing all of my clients a disservice by wasting time and resources litigating certain issues.  Generally the issues I have encountered as a "waste of time" are issues such as 1. a demonstrated alibi, acknowledged by the prosecutor; 2. a procedural error by the prosecutor that results in an automatic dismissal of my client's case.  I've also been told that 3. defense attorneys are doing their clients a disservice by not making them do treatment programs when the clients need them.
I get angry when a prosecutor tells me I am wasting their time because my client refuses to concede guilt.  It is downright horrifying how much the "innocent until proven guilty" is one big *wink wink nudge nudge* in the courtroom.  I have two cases in particular where the judge has actually said as much on the transcript.  I really should have ordered those. 
But I get nearly BLACKOUT angry when a prosecutor admonishes me about the time I won't be able to spend on all my other cases that REALLY need my time.  And I get nearly blackout angry when a prosecutor tells me that I'm preventing her from helping other defendants because I'm wasting her time by litigating issues on that case.  Or when a prosecutor admonishes me for 'letting' my client get rearrested, or 'letting' my client out of jail without a program in place in the community.
I'll set aside the prosecutor's belief that I have some sort of moral influence or flat-out control over my client's life choices - that "reason Prosecutors make me scream" we'll leave for another day.  But I cannot comprehend how a prosecutor can, with a straight face, argue that a case is not worth the court's resources and then adamantly refuse to drop the case.  I cannot comprehend how a prosecutor can tell me that I am actively hurting my client's best interests by NOT advising my client to take a plea when I have at least a 75% shot of complete dismissal.  Or really, the point is, I cannot comprehend how and where a prosecutor gets off by TELLING ME I'M DOING MY JOB WRONG.
You don't have to be an attorney to know what I'm talking about.  There are people in life who always seem to think they have some higher authority.  People who are never wrong.  People who tell you, when you feel a certain way about a subjective issue, that you are wrong.  And these people are frustrating because they are locked in some small little world where things are so certain, and you are here in this much bigger world where things are not so certain, and there's nothing you can do to get them to step outside that tiny little world of theirs to take a look around at all the other things that could be.
I have received several very, very unprofessional calls or personal tirades from prosecutors calling me a liar and a cheat.  One example (and the most memorable because it was the first and most volatile) originated because they forgot to show up for a hearing scheduled by the court.  When ordered to appear, they were not prepared and then accused me of fabricating the hearing myself.  However, when asked by the judge earlier that morning, their office told the judge that they were ready to proceed on that very hearing.  I think what really happened is that they lied about being ready to proceed, and since the left hand didn't know the right hand lied, the left hand argued back that I made up the fact that the case had been scheduled for a hearing.  The tirade was so unprofessional and filled with personal insults that I considered making a complaint with the ethics committee.
I've also been accused of making up, wholesale, a conversation I had with a prosecutor.  When confronted with my screaming rage and evidence of one actual conversation in particular, the prosecutor admitted that conversation occurred but never once apologized for calling me a liar or for openly insulting not only me personally, but my professionalism and ethical duty.
There are occasions when a prosecutor's behavior is so unprofessional and ignorant that it merely reinforces the stereotype of their unjustifiable arrogance.  The real evidence of arrogance is when they think it is their place to call me and 'supervise' me personally by telling me what I, personally, should be doing for my clients and why.  Why do prosecutors think they know what's best for defendants?  That seems so strange to me.  They know nothing other than the charges written on the paper - often times they don't get around to speaking to witnesses - and yet they profess to know what's best for my client.  Furthermore, it's no secret that my job is to represent my client's express interests.  So if my client doesn't want to do what the prosecutor is suggesting, why does the prosecutor think that I am somehow a horrid attorney for working on getting my client the disposition my client wants?  It would be one thing if the prosecutor was discussing the "worth of the case" which really means, what this looks like on paper without regard to the actual specific facts of this case.  But in these instances, when accusing me of "wasting time and resources" the prosecutor makes it personal - makes it about me specifically, and about screwing over a specific defendant, and as a result I'm personally being a bad, bad attorney to all of my other clients.
This is not meant to personally insult or accuse every prosecutor of being a douchebag.  There are only a chosen few prosecutors that I believe have zero redeeming qualities, and that designation was well-earned by them individually.  Most prosecutors I respect / contempt on a case by case basis, and the prosecutors I respect are not the ones who do me favors but the ones who are professional, reasoned, and capable.  (In other words, if you're insulted by this post, it's not really about YOU.  Unless it is.  In which case, you should really REALLY think before you say something - "Is this about the facts of the case or is this me telling someone else what to do because I think I know more than everyone else?")


Scoplaw said...

Wow. That's something. I suppose if I *ever* had a prosecutor tell me that I'd cross my eyes and make little "arf"ing noises like a dog.

Best to be courteous by conforming your comments to the dialog's level of sophistication.

Miss Conduct PDX said...

Oh, darlin', I feel your pain.

This causes me a large amount of frustration. I am also absolutely driven over the edge when the prosecutor insists on calling me to tell me that the motion I've filed is completely without merit and I "know" I'm going to loose. Funny--I thought that I had asked a judge to make that determination.

All part and parcel of the same attitude, I believe.

Definately scream-worthy!

Wolfrham Hart said...

On behalf of prosecutors I apologize. I can say I, and everyone I know, don't have bad relationships with defense lawyers. Most of the time we try to work out fair deals. Of course over 95% of my cases were pleas in the first place. As one PD put it: too much alcohol and too much testosterone!

Perhaps it's where you work. Small towns tend to be more friendly I've discovered. The big city tends to be more cutthroat.

Sanchovilla said...

Great post! I really like the part where your jaw dropped and the violence ensued but I was hoping a step by step of the nitty gritty details of the ensuing violence.

I'm glad I don't have to work in the courtroom. The only douchebags I have to deal with are...well...the odd douchebag I run across in the field every now and again.

Anonymous said...

I have to say your posts inspire me as a law student. From reading PD blogs like yours and others, I know more and more that this is the work I'm meant to do. Thanks.

Mike said...

I just want to say your blog is an inspiration to me. I am a law student in Oklahoma, and I love your rants, your emotion, your dedication, and your gusto.


H said...

I just found your blog and LOVE your tag line!! As a woman lawyer I think I've been accused of being those things and more!

Great work.
The Modern Woman's Divorce Guide

cleangreenslate said...

I've been fortunate - in a rural area so the firm only does PD work part-time, but our prosecutor is 99% excellent to work with. However, I have definitely run into these types of people (and not just in the criminal law). I often say that the nastiness of a lawyer is in direct proportion to their incompetence to actually practice. I love reading your blog - post again soon!

Seth Abramson said...


I'd just like the echo the comments made by two others here--I worked as a PD in New Hampshire for many years, and many of the prosecutors I dealt with were excellent. Extremely professional and very friendly, even when we disagreed. Sometimes I think it's that big-city prosecutors are such a dime-a-dozen bunch that their anti-social behavior goes unnoticed/unpunished. That, and they have such a high caseload, and are in such a large legal community, that a) they're burned out and harried to the point of "losing it", and b) they don't care about their reputation or good name, b/c the community is so large they don't think their bad behavior will actually destroy their career. In a small town or city, people notice the assholes.