Can the Defense Ever Be Pro-Prosecution?

I had dinner with a bunch of criminal defense attorneys the other night. Some in private practice, some public defenders.

The subject arose of another criminal defense attorney, who wasn't present, who had recently been a crime victim. We'll call him "Vic," because that seems like a good law school hypothetical crime victim name.

Vic had decided to cooperate with the prosecution of his case. He had testified in the grand jury, he had clearly stated that he would testify at trial if necessary, and, the rumor went, he had discouraged the prosecutor from offering a favorable plea deal to the accused.

My fellow criminal defense attorneys declared Vic a hypocrite. This kind of bothered me, and I've been thinking about it for the past few days.

Before we go any further, I realize that this is my second post in a few weeks on the subject of hypocrisy. I guess I should explain that to me, a hypocrite is probably one of the worst things you can call someone. Everything else: a bitch, an asshole, a jerk, whatever, that's all in your presentation. You can have a bad day, you can be nice to some people but not to others. You can be a bitch but be right. But to be called a hypocrite is to have your motives, your words, and your actions called into question. And, I guess as a lawyer I feel that we stand behind our words, so to be called a hypocrite is to attack the very base of who we are.

So, when I hear someone called a hypocrite, it gives me pause. I want to think about it, analyze it, discuss it. Because it's not a term I throw around loosely.

And, further, because I know there will be some confused commenters that say I'm calling Vic a hypocrite, or that it's wrong for me to call Vic a hypocrite - I'm not. In fact, I'm questioning whether Vic is a hypocrite, so it's quite the opposite.

So, the argument from the other criminal defense lawyers went like this - Vic argues all day long to give people (his own clients) a second chance, asks the prosecutors and the court to go lightly on his own clients, to take his client's circumstances and backgrounds into account. So, therefore, he's a hypocrite when he argues for the opposite for the man who perpetrated a crime against him.

One guy imitated Vic, exaggerating, "Oh, your honor, my client killed his mother, please let him go. But give the maximum to the guy who stole from me."

Another said, "Oh, sure, he fights the good fight, but when it happens to him, it all goes out the window."

(If you haven't guessed, Vic wasn't all too popular to begin with. But some of that may have been well deserved. That's another post.)

So, I want to know, in particular from the other criminal defense lawyers out there - is it wrong for a criminal defense lawyer to want someone prosecuted?

I guess I've always seen the criminal justice system as an adversarial one, a yin and a yang. Every case has a prosecutor, who represents the government and the victim, and every case a defense attorney to represent the defendant. And, presuming of course that Vic isn't representing the defendant here (he's not!), I think it's perfectly within his right to advocate for a tough prosecution and leave the defense to fight for it's side.

And, further, following this line of logic, a defense attorney must always be on the side of the defense. But, what about when that's at odds with your own defense? In other words, let's say there are cross-complaints, e.g. your client is accused of assaulting another person, and that person is accused of assaulting your client. Don't you want to see a successful prosecution of that person, as it might help your client's case? What about when police are prosecuted, for brutality against your client, for example? Is the non-hypocrite defense attorney supposed to be pro-defense, which is the police, or pro-prosecution which is your client? What about when the complainant lied to have your client arrested - can you wish that the complainant be prosecuted for filing a false complaint, or is that hypocritical?

So, what do you think - can the principled defense attorney ever be pro-prosecution?

Let The Record Reflect...

Just when you think YOU'VE had a bad day in court, you get to read the transcript of a really bad day in court.

Court reporter to razor-wielding defendant: "I will beat the shit out of you." - By Bonnie Goldstein - Slate Magazine

Let this be a reminder to all of our clients - everything you say and do in the courtroom becomes part of the record.

And to court clerks, commentary like "he was depressed and a broken man the last time," probably don't help the situation when the man really is depressed and broken.

He probably looked "better" because this time he had a plan, and a weapon.

(Whereupon there is screaming.)

Doomed to Repeat It

So... remember last year, when tax day was approaching, and I couldn't find my W-2s? Do you think maybe I learned something from that?

Yes, I learned that I should have left them on the coffee table, where I throw the mail every day. Because then, at least, this comment I left on my own blog would be like a little breadcrumb, leading me in the right direction.

Also, last year I was apparently worried about finding my papers by March 20th. This year, because I'm a busy private law firm lawyer, it's April 9th and I'm going to be cutting it even closer.

Guess we know what I'm doing this weekend.