Former Prosecutors III — A Specific Case

 Posted on April 11, 2008 in Uncategorized

I've written before, here, here, and here, as well as here, about former prosecutors taking criminal cases. So when I read Rick Casey's column in this morning's Chronicle, Who I'll Hire if I'm Caught, in which he explained why he would hire Kelly Siegler to defend him against criminal charges - because "if she can convict an innocent man, she can keep me out of trouble" - I immediately thought of a title for my blog post on the subject (first the title, then the post): Rick Casey Goes to Prison.

Luke Gillman beat me to it, though, with Rick Casey is Going Away for a Long, Long Time:

I don't know what's more appalling about that statement – the Lykos-esque logic or the idyllic notion of courtroom reality it reveals – that defense attorney Kelly Siegler would receive the same kind of treatment she has enjoyed as a prosecutor and that in fact, the craft of prosecuting and defending are interchangeable if not the same.

Kelly might make a great defense lawyer. She's certainly got the trial skills. I've said that the things she has done, Article 2.01 be damned, that have earned her so much attention, are the same things that great defense lawyers do in courtrooms across America every day. But I've also often said that a prosecutor can win all of his cases and think he's brilliant; a criminal-defense lawyer can win just a few and know that he is. Trial skills notwithstanding, I think it highly unlikely that Kelly will defend people, and less likely that she'll be worth a damn at it.

When lawyers are fighting over very important things, what they believe is as important as what they know. Much mediocre criminal-defense lawyering in Harris County originates with lawyers for whom it's "just a job." Some criminal-defense lawyers, though, have reputations around the DA's office as True Believer defense lawyers; it's hard to picture them (Dick DeGuerin? Katherine Scardino?) leaving defense practice to take jobs as prosecutors.

By all accounts Kelly is a True Believer prosecutor. To even take criminal cases, she would have to go against her nature. Then if she wanted to do a halfway competent job she would have to set aside the prosecutorial tendency to credit police and complainants with truthfulness (cops perjure themselves routinely; they even have a name for it: "testilying"); she'd also have to set aside her judgmental, retributive nature and her desire to see evildoers punished. It might all happen, but not overnight, and that only gets her to halfway competent.

To paraphrase AHCL, if I were charged with a crime, I would want someone who answered the calling to be a defense lawyer, not someone hedging her bets. Some of Houston's worst criminal-defense lawyers were once effective prosecutors. Only a great fool would trust someone who had spent 21 years as a prosecutor, left the office unwillingly, and started taking criminal cases to protect him from the might of the government.

This doesn't exclude former prosecutors forever from the running - some of Houston's finest criminal-defense lawyers are former prosecutors who found their calling after leaving the Office - but give 'em all a few years of proving that their hearts are in the right place as defense lawyers before you even think about trusting them with your freedom.