The Misdemeanor Three is the Rodney Dangerfield of the D.A.’s Office, because they get no respect. Not from their chiefs, not from their investigators, not from their judge, and certainly not from the defense bar. They “bow up” as a defense mechanism, and they are often demeaned in court unfairly, because they are usually just kids trying learn the job, for crying out loud.

I don’t think any Seasoned Defense Attorney should make a permanent decision about a prosecutor based on the way they handled themselves as a Misdemeanor Three. I know I had some moments that I wasn’t exactly proud of back then. Being a prosecutor is a job you ultimately have to grow into.

And also, don’t fault a Misdemeanor Three for failing to distance himself or herself from her Chief. The Chief is their boss, for crying out loud. You aren’t going to find too many baby prosecutors having a Stand and Deliver moment on the first month they work there.

I do love the last three paragraphs of your post, Mark. It is especially entertaining if you imagine Don Corleone’s voice reciting it. Baby Prosecutors beware! Respect the Defense Bar, or you will sleep with the fishes!

I’m not entirely comfortable with that position, though. This is a customer-service business, and if calling the mistress to testify is going to prang the rest of the client’s life, what business do I have deciding that a better shot at a favorable verdict is more important than whatever interest the client is trying to protect?

I guess the possible impediments to a zealous defense are something that, ideally, the client and the lawyer would discuss before hiring.

Another element seems to link to basic rights. Even if you as the lawyer tell your client the case is a guaranteed loser, he can tell you to take it to trial. Not because he might win (though of course he might), but because he has the right to his day in court. Same with the right to testify or refuse. And this covers the Judge v. Jury trial and sentencing decisions: the client has the right to be heard by his peers instead of being judged by the wisdom of the state.

But I wonder if your list is really comprehensive, and if there are other elements. I can imagine situations where dragging a clients spouse into testifying (or, perhaps, bringing in the mistress to testify) might help the client’s chances, but the client might find it too painful to bear. Would the client then have the right to order you to limit your witness list, or would he be left with the decision of “do it your way” or “take a plea”? And does this question loop back to the question of goals (which go beyond the obvious question of punishment v. exhoneration to something much deeper), or does it lead to another element of the client’s “territory,” something more akin to dignity?

I am trying to figure out a way to describe how client decisions differ from lawyer decisions. “Final goals rather than methods” seems reasonable, but it doesn’t do it because #s 2, 4, and 5 (and often #1) involve methods rather than final goals.

I think #3 is much more likely to arise in a misdemeanor case. When the conditions of probation will be more onerous to the accused than the jail time that it appears a jury will likely assess, the otherwise probation-eligible accused might elect not to file an application for probation.

I don’t think the DRs say anywhere that this is the client’s decision, but it seems to me logically to fall within the class of decisions that the accused should make.

But Mark, a great post. And true as well. As a misdemeanor newbee I had an awful misdemeanor chief that I had to distance myself from. But since she was yelling at me in open court, I think it was fairly obvious where I stood.

And Ooo, I hate the NLS’s…