More on prosecutors

There has been some discussion in the pd blog world about that post by a prosecutor. (You know which one I mean... the one that calls defense attorneys liars.) Gideon and Simple Justice both responded with their own posts. I, though, just went to his blog and responded in comments. I may have been a bit harsh (given my tendency to rant and all), but he invited responses and he admitted his post disparaged defense attorneys, so I can't feel too bad about using the word "absurd" more than once.

My biggest problem with his post is that we really shouldn't have to deal with that kind of attitude from prosecutors. I can accept that sometimes the public doesn't get what we do and may think poorly of us for standing beside some of the people we do. But I expect more from a fellow lawyer working in the criminal justice system. I expect better. I expect a prosecutor to understand and not just to accept what we do as necessary, but to respect us for it. I am still shocked when confronted with the opposite reaction. (Surely, one of these days, Nancy Grace will acknowledge the important and noble work that defense attorneys do, right?)

My friend and colleague wanted to give Western Justice the benefit of the doubt and find a way to interpret his post in a less obnoxious, less offensive way. She's optimistic that way. She responds that I'm optimistic in a different way because when I read opinions on the internet that I think are wrong or offensive, I take those opinions on and respond. She says I'm optimistic because I still think I can change hearts and minds. I'd like to think that our differing forms of optimism will keep us both hopeful when it would be easy to sink into cynicism. But despite our mutual optimism, I'm still pretty upset about WJ's labeling us as liars. (Yes, he said "lie promoters," but let's be honest about what that really means.)

His post seems to be based on some pretty basic and wrong assumptions that a criminal lawyer ought not to have. First, he assumes that there are times and cases where he can absolutely know the "truth" of a situation before heading to trial. But isn't that the purpose of the trial: to put all the competing stories out there, test them, and see which one survives? I recognize that prosecutors need to believe that they have the right story heading into trial because otherwise they would be putting an innocent defendant through a ciminal trial. Most people want to believe they're better people than that. But they ought to understand that we have a different story to tell. As is the case whenever two people report on the same incident, the "truth" is usually somewhere in the middle. I really do expect prosecutors to understand this basic truth about humans and as a result be willing to have some of his/her pre-set notions about a case be changed, even a little, during the course of a trial.

WJ's comments also require him (or her, I don't actually know) to assume that there must be times and cases where we just don't believe our clients. This idea was one of the reasons I listed in my post about why I hate prosecutors. I think they overestimate how often we disbelieve our clients, dislike them, or just plain think they should lose on all points. But that's just not the case. I usually like my clients, even when I think they're full of crap, which frankly isn't all that often. Usually, I just think they're basically ok people who got caught in a bad situation or made a (sometimes admittedly huge) mistake. I pointed out to WJ that we actually are entitled to believe our clients. So we're not automatically liars just because we put forward a story that differs from the police version or the complaining witness' testimony. (Just like prosecutors aren't automatically promoting lies by putting cops on the stand at suppression hearings...)

I think it is absolutely fair for us not to have to deal with these kinds of wrong-headed assumptions from prosecutors. We're all part of the same system. We ought to respect each other's roles and understand the important differences between them. I shouldn't have to educate a prosecutor about what my role is and why I don't have some of the same constraints a prosecutor has. And I shouldn't have to remind a prosecutor that just because my role in a trial isn't to get at the "truth," that doesn't mean the same applies to him. A prosecutor should be open to finding the actual, full, and complete "truth" at trial, even when that truth is that my client, the defendant you've decided to prosecute, isn't a total lying piece of shit wasting taxpayer money and your time by contesting his guilt. Hell, sometimes he really isn't that bad. And sometimes, he just really isn't guilty at all. In that case, prosecutor, are you a liar? I didn't think so.