It's strange how much judges and prosecutors really believe that we lie, lie, lie all the time. I often don't get involved in the "truth" or "what really happened" because no two people tell the story the same way. This is how defense attorneys get to use the government's evidence to create their own defense without ever having to put on a witness. It doesn't matter what I think really happened - if the evidence leads to the inference that there was a self-defense issue, then I get to argue that. The flip side of that is, I have no interest in spinning falsehoods. I don't need to create testimony or create evidence to create a false 'story.' The government (usually in the form of the police department) gives me all the false evidence I need.
It really gets to me when participants in this very system seem to embrace and support the belief that defense attorneys are liars. Often times when a prosecutor is confronted with a big booboo, the first response is to accuse the defense attorney of somehow craftily tricking the prosecutor into doing something. It's strange. Or when I file a notice of intent to introduce a particular defense, the prosecutor gets all *wink wink nudge nudge* "but you know he really did it."
I can almost accept that prosecutors feel this way but when JUDGES articulate this, it disheartens me to the point of wanting to throw in the towel. Why do I even show up for work every day? If even JUDGES think I'm a flat out liar because I represent people who have been accused of crimes, if I'm guilty by association for representing clients who are assumed guilty because they wouldn't have been arrested if they hadn't done something wrong, why do I even need to get out of bed in the morning?
And when the government loses, it's always, "The government failed to prove each and every element" but when a defendant loses, it's, "Defense counsel hardly makes out the requirements of XYZ" or "Defense counsel's tenuous argument that ABC..." I get called a bitch, I get all the adjectives, but the government never gets told that they are silly, ridiculous, and a colossal waste of time. Furthermore, even if my argument is tenuous, can we please just leave out the bitchy adjectives as a way of acknowledging that IT IS MY JOB to challenge these issues? That even if it's a loser of an argument, it doesn't mean that I should just fail to challenge evidence whatsoever? I mean, it's like having a trial and not saying a word because I know I'll lose.
Last week I had an oral argument on a suppression issue. The prosecutor alleged a certain set of facts that, for the most part, I agree with. Where we differ is that I introduced an entire previous set of facts, that existed BEFORE this second agreed-upon set of facts, that strongly negates the prosecution's conclusion as to what the second set of facts means. I discovered this first set of facts because I kept looking for a witness until the witness, in a very reluctant and hostile manner, told me what he observed. Other objective individuals were able to verify different parts of this first set of facts, and I was so delighted to have discovered such great exculpatory material. (although, sadly, if I can't ever get the witness in to testify, as is probably the case, then my client is in big trouble).
The government opposed my motion to suppress, mostly on the grounds that they deny the first set of facts existed because they say they looked into it and could not find any evidence this first set of facts existed. The judge denied my motion and in the decision, the judge constantly referred to this first set of facts with words like "allegedly" and "defense counsel would have you believe that..." The judge almost solely used the government's inability to discover my evidence (which is very strange, because it is technically THEIR evidence if they believe their own facts to be true) to deny my motion. Basically, if the government says it never happened, then defense counsel is clearly fabricating this entire thing. [Seriously, why would I MAKE UP facts? I'll argue inferences but to create an entire scenario based on sheer imagination? Why would I lie? See above.] I was so insulted that the judge, in no uncertain terms, called me a liar. If the judge had denied my motion because there were not enough facts to support it, that's one thing. But to characterize my argument the way the judge did...
I have a lot of words that come to mind in reaction to that decision, but the words I'll choose to use here are, "I'll see you at trial."
