Posted on
August 29, 2011 in
Some lawyers think ambush is the better tactic; I frankly would rather not be accidentally prosecuting someone who might be innocent, and I’d rather have your insight upfront.
That’s a Harris County prosecutor, responding to my pointing out a couple of the problems that I saw with the case against my client.
I wrote years ago about NLSes, or Nasty Little Surprises. An NLS is something about the defense of a criminal case that the lawyer doesn’t reveal to the prosecution before trial. I always like to have an NLS.
There are lots of good reasons not to reveal to the government the holes in its case until a jury has been sworn. Not revealing your NLSes, for example, conditions prosecutors to expect NLSes. Prosecutors don’t seem to care for this explanation; here’s an explanation that I think is harder to argue with:
When the cops find out the problems with your case, the truth may change. And if the truth is going to change, I’d rather have it happen in front of the jury than in your conference room.
When I was a young PD I had an animal abuse case. The prosecutor would not offer anything reasonable (didn’t have to based on what he knew). A malnourished horse died at a horse farm. My guy was arrested. I learn before trial that the horse farm didn’t belong to my client. Easy judgment of acquittal. I didn’t tell the prosecutor because I wanted to “show him.”
RIght before trial he found out I had a credible witness to testify to ownership of the horse farm. The prosecutor approached me and asked me why I didn’t tell him this, because “I would have dismissed the case.” I told him that honestly I didn’t know him and couldn’t trust him to do the right thing. He was visably annoyed.
He turned out to be one of the most honest and reasonable prosecutors I ever knew, but at the time, I didn’t know what he would do.
Every case and prosecutor is a crap shoot when it comes to the “NLS” issue. It’s a judgment call, like everything else
Mark,
You are doing it all wrong! The prosecutors won’t like you if you don’t tell them about NLSes. Who cares about attorney-client privilege and the like? Other defense lawyers do it!
Seriously though, I have some prosecutors that dislike me because at some point they were not able to “truly evaluate their case” because the defense attorney (me) failed to summarize the defense prior to trial. Either they don’t understand attorney-client privilege or they think I don’t.
This subject seems familiar to me.
I don’t like doing that kind of thing. I would rather not. But it’s not just my sentiments and feelings that matter in the end, is it?
And it’s kind of risky, too. I prefer to be prudent and honest and forthcoming in all accounts.
But I don’t feel that I’m at fault if there are many prosecutors and judges – and to be fair, in my experience more judges – who are not worthy of trust.
So yes, if you think you’re going to trial and you’re lucky enough to have some evidence like that, mums the word. Apologies to prosecutors who would do the right thing if they knew – or at least think they would.
I don’t view saying nothing as being less than honest. I don’t purposefully mislead.
The one thing I would ask is it really serving your clients best interests to actually go to trial if you have some information that would in fact cause the case to go away some time before that? I can point to at least one case — Hudgins v. Southwest Airlines Co., 212 P.3d 810, 830 (Ariz. App. 2009), where retention of such information by a company lawyer was a major portion of a successful intentional infliction of emotional distress claim. Now, I’m not saying that you are at all likely to be held liable (or even face suit) in such circumstances from your own clients, I merely use that case as an example of the fact of a case existing at all as being detrimental to that client’s well being.
Withholding an NLS that would in fact make the case go away would be a bad idea; revealing an NLS that might or might not make the case go away (because you might not trust the prosecutor to do the right thing, and you don’t trust the cops not to change their story to account for the NLS) might be a bad idea or a good one. Like Tannebaum says, “it’s a judgment call.”
There are many more things in the second category than in the first.
The flipside to the above is that oftentimes, the prosecutor doesn’t believe the defense attorney’s story, since the defense attorney is getting the story from his client, and the prosecutor can easily dismiss it as “the defendant is lying.” Many prosecutors are like this: assume that the arresting officer’s story is true and anything the defense attorney says to contradict it is false.
NLSes are 100 percent necessary against these prosecutors. But they may not be necessary against more reasonable prosecutors.
I call them “landmines.” The best ones are when the complaining witnesses call to tell me that the prosecutor won’t listen to them and then tells me everything.