Posted on
October 19, 2008 in
Scott “Paladin” Greenfield yesterday took on former prosecutors advertising for criminal defense cases by suggesting that they can do things for the accused that other people can’t. There are lots of angles that could be taken on this issue; Scott’s is that
The pitch is intended to capitalize on a basic misperception by the
public, that the skills one develops as a prosecutor, characterized as
“experience in criminal law,” translate into the skills one requires as
a criminal-defense lawyer.
Capitalizing on a basic misperception by the public in order to market oneself is unethical, and Sheriff Greenfield isn’t afraid to say so. “We can’t do it. We shouldn’t do it. Yet it’s done all the time.”
But there’s more:
. . . [T]his isn’t the most insidious aspect of marketing oneself as a
former prosecutor. A secondary implication, which is often suggested,
and sometimes overtly claimed, is that by being a former prosecutor, a
criminal-defense lawyer has some inside track to getting his old
buddies to let him have special sweetheart deals, or that he’s got some
special friendships with the judges before whom he appeared day after
day after day, who will do him (and therefore you, dear client) special
favors that would not come your way but for his inside connections. . . .This is an outrage and affront to everything that we do.
Brian Tannebaum touches on this particular topic — connections — in The Truth About Hiring a Criminal Defense Lawyer:
“Knowing” people in the system never hurts, but no otherwise incorruptible judge is going to suppress evidence because she’s friends with the lawyer, [and] no prosecutor is going to “take a dive” in court because he’s on the defense lawyer’s basketball team. . . .
There’s another side that the client should probably consider before hiring the lawyer who claims that he can exploit his relationship with the judge or the prosecutor to the client’s advantage. What he’s saying is that he’ll exploit his relationship with the judge for your sake.
This suggests that a) he is friends with the sort of people who would take a dive and violate their duties for the sake of their friendship with him; b) he is the sort of guy who would ask them to do so; and c) he thinks it’s okay for a professional to take a dive. This is always a two-way street — birds of a feather and all that.
So: the lawyer has had a relationship with the prosecutor for, say, ten years and expects to for twenty more. He has had a relationship with you for ten minutes and expects to for six more weeks.
Which relationship do you think he’ll forsake for the sake of the other?
An excellent point from the Texas Tornado. How about trading off dispositions, where your ex-prosecutor lawyer cuts a deal with his buddy the prosecutor to let one defendant walk if he agrees to plead out another to prison time? Who wants to be the client on the bad end of that sweetheart deal?
It seems like at least some of the skills learned as a prosecutor would translate into being a good defense attorney. There are a plethora of trial advocacy skills, for instance, that prosecutors develop because they have more trial experience than most lawyers. They would also have experience in the criminal law, and therefore have knowledge of the issues that arise in different criminal cases.
Now, I don’t think a former prosecutor is BETTER equiped as private criminal defense lawyer than say, a former assistant public defender. The former PDs have most of the skills prosecutors have, but from a defense context, as well as the necessary client skills that challenge a criminal defense lawyer. But I think a former prosecutor would be a better criminal defense lawyer than a former property lawyer, or a fresh lawyer with no experience.
(Background – I’m a 3L, applying only to pd offices and prosecutor offices in the state of Florida)
Ross,
Didn’t they teach you in law school not to assume? Your theory is based on a number of assumptions that simply aren’t valid. Give it a few years in the trenches and you’ll see what I mean.
Defense advocacy skills are very different than prosecution advocacy skills. To give but one example, in the last case I tried, I conducted seven cross-examinations and one direct examination. The prosecutor conducted one cross and seven directs (“what happened next?”). This was a perfectly ordinary trial.
Still, my clients don’t hire me for my cross-examination skills. That I can try a case serves only to reinforce my value. They hire me for my ability to help them make the correct go/no-go decision in their unique situation based on imperfect information — something for which a former prosecutor may actually (for reasons I’ll expound on later) be worse-suited than someone who’s never handled a criminal case.
Well, if I’m wrong I’m wrong. I do happen to know a few lawyers and professors who have gone back and forth between public defender offices and prosecution offices. One of my favorite professors at law school started his career as a prosecutor, but went on to try capital cases for the local public defenders offices before becoming a professor. A judge I interned for started as a local prosecutor, and then worked for the federal public defender before getting his spot on the bench.
In fact, it’s common advice around here to do the opposite internship. That is, if you want to be a prosecutor after law school, do a public defender clinic, and vice versa.
I don’t doubt that there is a different skill set, but my professors and the lawyers I’ve met doing internships have all said there is some degree of overlap. For instance Mr. Bennet, if an average criminal trial is like the one you suggested, the prosecutor who has done one cross examination per trial for 100 trials has done 100 cross examinations. He should be more prepared for a trial where he does 7 cross examinations than an attorney who has done 0 cross examinations.
I’m somewhat surprised that my comments were to any degree controversial. It seems to be the common wisdom that there are skills that are transferable between the disciplines. Of course, I don’t intend to be overly ‘defensive’ (no pun intended)in my comments. As a law student, I defer to the expertise of practioners in the field.
I’d be happy to learn more about why I’m incorrect, and what assumptions I’ve made that are invalid. It would actually be quite important for me to find out, as I’m about to begin a career… assuming Florida lifts its statewide hiring freeze and I can get a job.
I guess a follow up question to y’all would be whether it makes a difference if the prosecutor went right from prosecuting to private practice or if he/she took a detour (or permanent stop) at a public defender’s office?
Ross,
First, you’re lucky to know professors who have actually worked as lawyers. In the practical world, it’s that, and not the “professor” title, that buys them a bit of credibility.
Second, I believe that, when you’re doing this work, what you believe is more important than what you know. Lawyers can do their job cynically, but those who do the best are those who have a greater sense of purpose, of mission. Broadly speaking, this mission is usually, for the great prosecutors, to keep the people safe; for the great defense lawyers, to keep the people free.
It is possible for a great prosecutor to become a great defender (many do) but by no means certain and perhaps unlikely, because old habits die hard. The lawyer who is biased toward safety rather than freedom, who believes deep down that it’s somehow important to society that the client go to jail, is going to make the crucial go/no-go decision differently than I would.
Other factors than the person’s nature also affect that decision, which defines who we are as criminal defense lawyers. For example, there is a personal (ego) risk in trying cases: losing a trial hurts. The more averse a lawyer is to this risk, the less likely she is to make the go/no-go decision based only on the best interest of the client.
Third, I’ve seen lots of crappy cross-examinations from defense lawyers who haven’t sought out the cross-examination tutelage that is available, as well as from prosecutors, but very few great crosses from prosecutors.
The prosecutor who has performed a hundred crosses learned to do so as a baby prosecutor, probably from a prosecutor who had performed only a few and had learned from another who also had performed only a few and so on and so on. This is a great way to learn to cross-examine badly; you can see this in most prosecutorial crosses (staccato repetition of the alleged facts), which barely do the job on an already-unsympathetic witness and would be woefully inadequate for the cross of a complainant or cop.
I will agree with you on that. I found I learned a lot more from the professors who had done significant practice.
I certainly agree with your later point – learning something badly is worse than never learning it at all.
I’ll tell you, when I entered law school I was dead set on criminal defense. But two things changed that. 1)the job market went sour quickly, meaning I needed to broaden my horizons and 2)I interned for a group of judges locally. While in the courthouse I saw prosecutors doing what I thought was good work. By that I mean they were doing good by the comunity, and that they were demonstrating what I believed to be good lawyering.
I feel like I would be happy doing work in either defense or prosecution – I understand the very important roles that each play and feel that I could step into either role and be very good at it. It’s possible (probable) that I’m just naive about it, and I’ll know better in about 12 months…