Posted on
July 28, 2008 in
In a criminal case in Texas, the accused has five decisions to make:
- Whether to plead guilty or not guilty;
- Whether to try the case to judge or jury;
- Whether to ask (in the event of conviction) for probation;
- Whether to testify or not; and
- Whether to have judge or jury (in the event of conviction) assess punishment.
The criminal-defense lawyer’s job with regard to these five decisions is to advise the accused so that he understands the decisions and the consequences of either choice, ensuring something like informed consent. The lawyer’s job is definitively not to make these decisions for the client, though often the choice is so clear that the lawyer’s description of the options leaves the client with only one reasonable option. (Try your case to a judge in Harris County? Almost always a no-no.)
Every other decision — how to negotiate, whether to reveal NLSes, what witnesses to call, how to try the case (once the client has decided to try it) is the lawyer’s to make. And making those decisions, more than anything else, is how we earn our pay. It’s a matter of knowing where (and when) to tap.
Some NLSes, for example, if revealed to the prosecutor before trial, might make the difference between an unreasonable offer and a reasonable one, or between a jury trial and a dismissal. But if we reveal our NLSes before trial, they are no longer NLSes. You can see the dilemma: reveal them early in hopes of some advantage in negotiation, or save them for trial when they will have maximum effect.
To make this decision, the lawyer has to know the terrain of the case — the facts, the law, the court — and how they affect the chances of winning at trial and the appropriate plea range. She also has to know her adversary. Some prosecutors are more reasonable than others, who will respond to The Reveal [I thought Matlock blogged about The Reveal, but I can’t find the post; I’ll add the link if I can turn it up] by woodshedding their witnesses to neutralize it.
My general position is that I don’t reveal any NLSes until I am sure that they will make the difference between an unfavorable resolution and a favorable one.
Some Harris County prosecutors I know that I can trust because I’ve practiced against them for all or much of my 13 years in the criminal courthouse; some I know that I can’t trust for the same reason.
In misdemeanor court, however, all of the prosecutors are newbies with less than three years’ experience. How do I know whether to trust them? Prior experience, certainly — if I’ve had a reasonable experience with a prosecutor the last time I dealt with him, I will probably have another reasonable experience with him the next time. Word of mouth, too — if my colleagues have dealt successfully with a prosecutor, I may be able to do the same.
But what if I haven’t had enough experience with a prosecutor to know how she’ll respond to The Reveal, and none of the brethren and sistren of the bar has anything positive or negative to share about her?
A necessary skill for the criminal-defense lawyer is the ability to read people — witnesses, judges, prosecutors, and clients (especially clients). If a lawyer doesn’t have a Rhodesian Ridgeback’s character judgment, he’s going to appear to have very bad luck in the criminal courtroom. I will form a judgment of a prosecutor’s character in the first few minutes of observing her dealing with other lawyers in the courtroom, and this judgment will inform my treatment of that prosecutor until I see evidence that it should change.
Misdemeanor court is a good place for baby prosecutors to learn from more experienced defense lawyers, and a bad place to make career-long antagonists. A pissant misdemeanor prosecutor who is anything other than courteous to my fellow defenders is presumptively untrustworthy. A misdemeanor 2, 3, or 4 who’s working under a rude chief, or a chief who tolerates insolence from his subordinates, is likewise not to be trusted absent proof to the contrary. The chief sets the tone for the court, and a baby prosecutor who comes up under a malevolent chief is likely to turn out malevolent herself.
Because I won’t reveal an NLS to anyone I don’t trust, the insolent pup’s job is made more difficult, while the prosecutor who recognizes that he’s not doing the most important job in the world and that (mock trial experience notwithstanding) he’s not God’s gift to advocacy is going to find a spirit of cooperation even from some of the most obstreperous members of the defense bar (like me).
I suspect that some prosecutors come into the practice (from the high school – college – law school track with no intervening real-world experience) thinking that the State holds all of the cards. This is often true but, with a competent defense lawyer, probably not more than half the time. By the time we get to trial, no matter how much the case looks like a whale (to you and even to me), I guarantee that I’ve got something up my sleeve that is going to make you sweat.
All things considered, I suspect that any prosecutor would prefer to know my Nasty Little Surprises before trial than to hear them from the witness stand (generally from the State’s own witnesses, which is where The Reveal is most effective), when they might make the difference between a one- and a two-word verdict. I suspect also that the reasonable prosecutor would rather settle the case on reasonable terms before trial (or dismiss it, if the evidence I have gathered merits doing so) than take it to a jury and risk a big loss.
A misdemeanor prosecutor emailed me some months ago, suggesting that instead of criticizing baby prosecutors for their misjudgments, I could give them some guidance. I’m happy to oblige.
Here’s the first moral of this story: how you treat the least among us is going to affect how you are treated for the rest of your career. You can decide now that you are the biggest badass of a prosecutor ever, and you want everything to be as difficult for you as possible so that you can continue to prove yourself. Do that, and you’re going to get beaten more often and more severely than you have to, and you’re going to grow up to be unhappy and alone. Approach your public service with humility and attentiveness, however, and you can save your energy to fight the important battles; you will enjoy your job and find friends and allies in the most unlikely places. You will, in other words, get what you deserve.
Here’s another moral: fairly or unfairly, you are judged by the company you keep. If your chief is a bitch and you don’t distance yourself from him, you’re going to be seen as a bitch (probably fairly — it’s hard for it not to rub off).
The third moral is this: you are a public servant. It is not necessary for you to treat anyone rudely. Rudeness is the weak person’s imitation of strength.
Wow, that was a wide-ranging post. And largely true.
Quick question, just out of curiosity: When would No. 3 ever be a decision to make? Maybe I’m missing it, but it seems like a no-brainer to me, once a jury has convicted.
NLS management is tricky. As a prosecutor, I do not expect any defense attorney to reveal an NLS unless (1) it is indisputably true, AND (2) makes some kind of substantive difference in the case, e.g. changes what the def is guilty of, exculpates entirely, or maybe definitively changes what they should get. I do not hold most NLSes against defense attorneys — I view that as a reasonable part of zealous representation. But when a defense attorney doesn’t reveal the kind of NLS I describe above, I figure it’s because she either doesn’t think I’m going to be reasonable, or doesn’t trust me. I probably won’t hold THAT against an attorney, either, especially if they don’t know me that well.
There are, however, some NLSes that I DO hold against defense attorneys and that cause me to mistrust them. The ones that come most readily to mind involve anti-woodshedding/quasi-witness tampering when the resulting testimony definitely does NOT seem “indisputably true.”
If I were a defense attorney, I would probably lean AGAINST revealing NLSes unless I was very, very sure it would make a difference — just as Mark suggests. After all, if they’re not going to make a difference, then why sacrifice the strategic advantage?
When I was a very, very new prosecutor, filled with the stress and pressures of a new job, I tended to be on the rude side. One day, a defense attorney whom I will always think of fondly came up to me (after disarming me with some kind words) and offered this simple truism. “Counsel, you’ll attract more bees with honey than with vinegar.”
[…] Decisions, Prosecutors and Secrets Mark Bennett has a great post from yesterday regarding the quick decision-making that takes place between a criminal defendant […]
I am ashamed to admit that I didn’t know that one of the clients choices was whether or not to argue for probation after a conviction…. good to know. Though I bet I am not alone. I bet many defense attorneys don’t know that either.
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…
Is No. 3 a misdemeanor-specific decision? Still wondering…
Sure, you catch more flies with honey than with vinegar, but if (for some reason) you really want to catch flies your best bet is a dead squirrel.
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.
You took that ‘dead squirrel’ line from Woody Boyd, didn’t you? One of my favorite Cheers lines.
I’m sure I stole it from someone.
I always found dogsh*t works best for flies, but I was talking about bees…as long as it’s not an angry swarm. Where was this analogy supposed to be going?
#3 is massively important for the client, since it involve such a personal decision. The client needs to look inside himself and decide if he can really meet the conditions of probation. Otherwise, he’s just helping the state set him up for an even bigger fall. #3 is not a decision an attorney can make for his client either legally (since it involves the final goals, rather than the methods) or intellectually, since it is based on a deep personal evaluation that only the client can make for himself.
Bill M,
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 take your point, and I was uncomfortable with my phrasing, but the client’s class of decisions is very hard to classify. Goals are clearly part of the issue, since the client must have sole control of those.
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?
As a matter of doctrine, I would say that the decision of whether to drag the mistress in to testify is the lawyer’s, rather than the client’s. The choice is not “do it my way or plead” but “do it my way or hire someone who will do it your way.” If you’ve hired me to fight your way out of trouble, don’t go tying my hands behind my back.
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.
I’m not a big fan of rudeness on any level, but I will freely acknowledge that plenty of prosecutors are downright rude to the Defense Bar. But, in all fairness, some members of the Defense Bar are downright rude to prosecutors. And that is often the case when the defense bar is dealing with Newbie Misdemeanor Threes.
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’ve had prosecutors be snippy or rude on a given occasion, and later found them to be pleasant and professional. ADA’s have a tough job, and we all have bad days, sometimes following bad nights. Everybody is entitled to a little slack every now and then, unless that person’s behavior is outright inexcusable. Oh, and shouldn’t those dogs be called “Zimbabwean Ridgebacks?” After all, Rhodesia is so 1970’s.