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?


  1. I'm not in any way associated with the legal system, just a private citizen.

    It was my understanding that "go lightly on my client" was a role a defender assumed as part of the adversarial legal process and didn't necessarily reflect on the attorney's personal views or thoughts on the crime.

    So I don't see anything wrong with an attorney, in the role of private citizen / crime victim, advocating for maximum punishment for a criminal.

    Another way of looking at is I'd respect a defender argued that their client is innocent or deserves lighter punishment as doing their job. I'd think a defender who argued that all accused were innocent or deserving of light sentences a fool.

  2. Like your post on vegetarianism, doesn't it depend on WHY Vic wants the prosecution to go easy on his clients when he's the defense attorney?

    For example, say he believes in the yin and yang theory. The prosecutor must prosecute, he must defend. Further, if the victim asks the prosecutor not to offer a plea bargain, then the prosecutor shouldn't. As long as Vic doesn't cuss out the prosecution for doing these things when Vic's the defense attorney (and instead recognizes the prosecutor is fulfilling the yang side of the equation), I don't see how it's hypocritical for Vic to ask the prosecutor to prosecute the defendant in this case.

    But if Vic instead fights for his clients because he believes everyone deserves a second chance, and he gets mad at the prosecutor for being heartless for not plea bargaining, then yes, I think that would make Vic a hypocrite.

    Or, as a third option, if Vic only gets mad when the prosecution won't plea bargain with someone who "clearly" deserves a second chance (and I leave that loosely defined), then it's possible he's not a hypocrite here, because perhaps the defendant in Vic's case isn't one of those. Or he could be, if it's a first-time offender who isn't likely to re-offend.

    So really, it all goes back to the core of Vic's belief and actions, and why he's doing what he's doing now. Until one knows that, I don't see how one can decide whether Vic is being hypocritical.

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

    Yes of course.

    Defense attorneys don't exist to help criminals, but to prevent innocent people from being convicted. The only way to do that is to give the best possible defense to everyone, both guilty and innocent.

    Any alternative would require deciding upfront who was innocent and who was not. But if there were a way to do that, no court case would be needed at all.

    I am very surprised that a bunch of criminal defense attorneys, of all people, would fail to understand this basic principle.

  4. As usual you leave a thoughtful and important post.

    Since I left law school, I have never not been a defense lawyer, except the couple of times when I was asked to be a special prosecutor. The answer is a defense lawyer should always be pro prosecution.

    Let me elaborate. Crime is committed. Best case scenerio is that the police follow all the rules, and arrest the correct individual. The Prosecutor is fair and honest and plays by the rules the whole way. The Defense Attorney vigorously defends the case after a careful examination of the evidence. The jury is smart and welll charged by a judge who calls every ruling correctly. The case is proven beyond a reasonable doubt and the defendant is found guilty. The court sentences the defendant to full restitution and a sentence which is individual to the defendant and which helps him to correct the behavior. After he has completed his sentence, the defendant returns to the community a better person and the complainant has been made whole.

    For the opposite to happen, it would require that the wrong person be convicted of a crime that they did not commit. No defense lawyer should be upset if the right person is convicted after a fair trial and for the right reasons. OTOH, We should all be pro defense when it comes to issues that keep the wrong person from being wrongly convicted. I have often heard it said ( and maybe honored in the breech) that no prosecutor wants to convict someone who is innocent. I would hope they also don't want to convict someone who is not guilty beyond a reasonable doubt.

    Good criminal defense attorney's do not argue for leniency. They argue for a sentence that fits the crime. They argue for another opportunity. They argue to keep the defendant from being just another number and so that if the defendant is convicted of a crime he committed, he is able to rejoin society with as little baggage as possible.

    Defense lawyers who bleed all over a courtroom are terrible lawyers. They have failed to take the other parties needs into consideration and as a result rarely "win" a fair or even a good sentence for their clients. Judges ignore them because they know that the lawyer will never be able to guide the court.

    Now as to the case at bar, your colleagues at the saloon probably have become grizzled after years of fighting hard to keep things fair and finding that in their opinions things in the courthouse are not fair. They have fallen into an US v. Them dilemma. They have wrongfully internalized the fight. It is hard not to, but it is still wrong.

    I try to see most prosecution v. defense disagreements as two neighbors who see things differently. I know that some folks on the other side play unfair. I am prepared to meet that by using the law and by being prepared for anything. I do not take it that they are gunning for me, they just don't get it any more than your buddies at the tavern do.

    Here is the deal. Guilty in fact or innocent, it shouldn't matter to the defense attorney as it is his job to see that all things were done right and that his clients story is heard and understood by the fact finder. After that, it is up to that fact finder.

    As for Vic. If it were I who was a victim, I would report the crime, be available to testify to the facts, and I would stay out of the plea negotiations except to ask that if there is a plea, that any sentence be one that would provide only correction and no retribution or deterence. I would address the court at sentence by written statement, sent in, not read from the podium.

    I would pray for the person who had harmed me, that they could find healing and learn to be part of our society again.

    I think it is hypocritical for him to tell the prosecutor what he can offer in a plea, and what he can't. Prosecuting in general however is not hypocritical, it is part of citizenship. We don't stop being citizens in our neighborhoods just because we choose to defend those accused of crimes. Getting involved beyond that however strikes me as wrong. Especially if he like I argue that the prosecution is not representing the victims but the rights of all citizens to be safe in their homes and communities.

    Hope this isn't to long.

    That Lawyer Dude

  5. I think it would be bizarre for a defense attorney not to want some people prosecuted. And I'm about as true blue a believer as you'll ever find. Like the examples you've mentioned. I would certainly want the state to prosecute a snitch who committed perjury in testifying against my guy. I wouldn't feel conflicted at all if I became the victim of a serious crime: prosecute the bad guy. I would certainly hope I would be consistent and fair in deciding what the just outcome for my perpetrator should be. I'd like to believe I would still think the prosecutor wanted too harsh a sentence. :)

    Criminal defense attorneys are still allowed to subscribe to the general concept that people who commit crimes should be prosecuted, appropriately punished, and rehabilitated.

    Most of the time, my problem with the state isn't with the mere fact that they are prosecuting my client (although sometimes it is). Usually, my problem is with the manner in which they prosecute him, the level of the charge, and the sentence they seek. So I can approve of prosecution as a general concept while still daily fighting the implementation of that concept.

  6. What a good, thought provoking post. I agree with you, especially with regard to the comment about the yin & yang of the system. I'm a prosecutor, but I have a lot of friends who are defense attorneys, and I think we each have our role. Obviously it helps if you're invested in the role you're in...

    Anyway, to flip the question around, would it be hypocritical for a prosecutor charged with a crime to fully fight the crime? Should said prosecutor show up at arraignment without an attorney and plead guilty without bringing pretrial motions or attempting to negotiate on the offer?

    Plus, I don't see being a defense attorney to be synonymous with being anti-victim.

  7. I am not an attorney but for several years I was a union grievance handler defending employees. While losing one's job may not seem so terrible it ranks high on the list of life events. Alcoholics will lose their wife, friends and family ... yet sober up at the thought of losing their job. So I was their spokesman for the defense regarding all manner of offenses for assaulting someone, sleeping on the job, substance abuse, theft, just about anything you can imagine would cause discipline on the job or termination of employment. You HAVE to maintain the view that you are separate from the events and are representing the individual accused. And you are representing any and all individuals who may be accused in the future. If we allow even one innocent person to fall victim to the system then anyone can have it happen to them. This is entirely separate to what may happen to you as an individual ... it is not hypocritical to expect the full measure of justice when you have been wronged and there is the same responsibility for the defender of your accused to do his / her job. It would be hypocrisy to say justice is only deserved for others and not one's self. Or vice versa.

  8. I don't think its necessarily hypocritical for a defense attorney to want someone else to be prosecuted. Maybe it depends on the circumstances, I don't know. I had a situation several years ago where my 4 1/2 year old son was assaulted by his daycare provider, and while at first I wavered over what to do, within a day I made a police report and tried to get the State to prosecute the case. They refused to file charges (shows what they think of me as a public defender). Ultimately I wasn't trying to get the woman put in jail, but I didn't think it was appropriate for her to continue running a daycare (which she was). I finally gave up trying to get the State to do anything, figuring I'd filed the report, and if some other child ended up more seriously injured than mine, then the State would be in a much worse position.

    So was I a hypocrite? I don't think so, but ultimately I was trying to protect other children. I've also been mugged and had my apartment burglarized in the past, but those weren't cases I pursued like the one involving my child.

  9. Of course. I'm much more concerned that your other PD friends don't seem to agree, which calls into question (in my mind) their understanding of their role in criminal-justice-morality plays (a.k.a. trials).

    The defense attorney is the defendants only advocate in an adversarial system. And the defense attorney's job is to advocate on behalf of his or her client (obviously you know that). That is why, however, a defense attorney is doing his or her job when they argue for a reduced sentence or a chance at parole, and present evidence of mitigation and extenuation. Even if the defense attorney knows that his client is a murdered, sociopath with a rage disorder, and a life-long danger to himself and others we are expected to do our best to reduce his exposure to punishment.

    That doesn't mean we have to believe it. Indeed, only a moron would believe half the shit we present as arguments to a court. We should do our best to play our role in the system, because we believe in the system. But I'll candidly admit to anyone: If I'm charged with a crime I don't want a "true believer" defense attorney - one that buys into the lines we sell to the judge and juries. Why? Because I want an attorney who is reasonable, has a good mastery of common sense, and understands his or her job in the judicial process. I expect them to make the arguments if that's the best they can do - but I also expect them to tell me in private, "Don't hold your breath, because if the jury can see though my smoke screen you're totally screwed.....sorry but that's the risk you run when you're guilty."

    As a rule we sell lines of crap to jurors and judges because it's in our clients’ best interest. But, when we are a victim to a crime, and not a defense advocate, why the hell should we be required to buy into the line of crap that we peddle on a regular basis? Let's leave that to the defendant's (undoubtedly qualified) attorney.

  10. Sure, I think so. When Vic's a defense attorney, his main concern is for the best interests of his client. Of course he's going to do whatever he can to make sure that his client has a fair trial and gets a favorable outcome (whether that be a plea bargain, an acquittal, or what have you). That's entirely appropriate, and in fact necessary, to the adversarial system and to protect the rights of defendants. When Vic is the victim, however, his concern is not with the best interests of the defendant, nor should it be. He's interested in making sure that the guy who harmed him gets what he deserves; he's interested in making sure that the guy he believes is responsible for his harm is taken off the streets or fined, or whatever. That's fine. Presumably, in our system, that guy already has a zealous defense attorney looking out for his interests, just as Vic and the State have the prosecution. I've never understood the animosity across the aisle. I plan on being a prosecutor, but I think that defense attorneys are necessary to the system, and I think most of them are honest, decent people. Those who aren't -- it's because they're assholes, not because they're defense attorneys. Same with prosecutors.

  11. In my experience there are two broad classes of criminal defense attorney -- crusaders and those who believe it is just another job. Of course, there are some who fall in the area between there two extremes, to varying degrees, but pretty much one or the other.

    Vic sounds like a guy doing a job,which is, in the long run, to make sure I'm doing my job. Your dinner companions sound like crusaders.

  12. In my experience there are two broad classes of criminal defense attorney -- crusaders and those who believe it is just another job. Of course, there are some who fall in the area between there two extremes, to varying degrees, but pretty much one or the other.

    Vic sounds like a guy doing a job,which is, in the long run, to make sure I'm doing my job. Your dinner companions sound like crusaders.

  13. (from Australia, but the same principles seem to apply.)

    Belief in the role of a strong defence isn't feeling crims should get off lightly, at least to me and in my jurisdiction, it's a belief that justice is best served when you have the strongest arguments for and against someone arrayed out in front of an experienced and impartial decision-maker (the judge).

    Personally I'm mystified by anyone who sees the job of the prosecution and defence morally different, given they're both serving an adversarial system.

  14. Dear Blonde Justice,

    disclaimer: I'm not a defense attorney, just someone interested in law.

    That said, I'm with you. Vic's *JOB* as a defense attorney is to argue for lenient treatment for his clients. That is his professional life.

    By contrast, it is his *RIGHT* as a crime victim to seek recourse to the fullest extent the law will allow. That is is his personal life.

    The two arenas are separate and exclusive. Just because someone is a defense attorney doesn't mean they're required to show leniency to those to victimize them.

    It's an interesting paradox, of course, and one probably beyond the conception of many people, but that's the beauty of it.

    Just my .02.

    p.s. Love your blog. Linked it.

  15. I don't understand why a prosecutor can't be pro-defendant's rights and a defenense attorney be pro-prosecution in some cases? If you're not, you're probably not applying common sense. Living in a small town where defendants I have convicted have served on my jury, I have seen defense attorneys as victims of domestic violence and defense attorneys as defendants that I've prosecuted, and in one case, I even let a defense attorney on the jury (he convicted). None of that is hypocritical because they are all different roles. The defense attorney-as-jurors role was to determine guilty or not guilty, not just side with the defendant automatically. The defense attorney-as-victim was someone who was harmed, and expessing Vic's feelings of being a victim of a crime. And defense attorney as defense attorney is to represent your client efficiently as possible. We play different roles, so it's not hypocritical.

  16. Seems like there's an underlying and unresolved issue: Who is attracted to their respective posts, and why?

    For attorneys just interested in career and experience, who see it as more of a career than a vocation, the answer is pretty simple. They can do both, easily. Mister DA calls them "crusaders" when they're PDs, but I think the term applies to DAs as well. True believers, as it were. And of course there are people who fall in between.

    I think hypocrite is far too strong a word to apply to someone who is the victim of a crime and wants it prosecuted, even as someone who is PD oriented. At the same time I would like to believe that were I a victim of a crime, or a relative/close friend of a victim, that I could be objective and support sufficient sentencing and procedures. Maybe I could, maybe not. Luckily, I don't know yet. Hopefully I never will.

    Regardless of his efficacy as a defense attorney, Vic does not deserve those attacks on his character, no more, at the very least, than DAs charged with crimes (or DAs with relatives charged with crimes) deserve attacks on their character because they have asked for leniency. It is an adversarial system. We true believers just live in it, we don't get to run it.

  17. Defense attorneys are people with jobs just like everyone else. When they are defending their client they are doing their job and they advocate to the best of their ability. In their private lives they are john/jane Q Public and are entitled to the same protections under the law and the same rights as any other victim. Of course it is not hypocritical for him to expect what every other victim has the right to expect, justice in his case. Every victim also has the right to express his desires to the prosecution and if he choses to express his regarding a plea bargain so be it. Ultimately it is the prosecutor's decision on what to offer and not the victims. Why are attorneys held to a higher standard of forgiveness than anyone else? A criminal is a criminal and deserves to be punished if in fact he is guilty and good lawyer should not be accused of being hypocritical for doing his job well while still expecting justice from the judicial system.

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

    That's ridiculous. He fights the good fight for his clients because that is his place within our (you said it) ADVERSARIAL system. He has his part to play in the system, which is defending the defendant and forcing the prosecution to prove their case. Because he is their defense attorney.

    BUT, now he's the victim, he's NOT the defense attorney. His job is to advocate for himself, and as such, to assist the prosecution. It's assinine to expect him to do anything else - what, just because he is a defense attorney does that imply he doesn't want to see justice served? Absolutely NOT. So, no, he's absolutely not being a hypocrite about this.


  19. Hypocrite.

    Particularly if, as you suggested it's a theft. If we see one thing as PD's, it's that our clients comitt crimes for lots of reasons none of which are corrected, or amelorated by a prison sentence. For one of us to be the instrument of that fundamental injustice is, well, hypocritical.

  20. Wow! Thought provoking, indeed.

    I am a career public defender and I signed on to leave a comment about the advesarial process, blah, blah, blah.

    What I'll say instead is, "Yeah! What That Lawyer Dude said!"

    My dear, I've had lots of practice explaining what I do for a living. I'm going to "borrow" your words from now on.

  21. Hi Blondie,

    Long time no see. My old Blog Malum In Se died so I started a new one. As for your question, I think as attorneys we have the luxury of hypocrisy. As an attorney I have a duty to zealously represent my clients interest, even when I personally may not agree with them.

    Every time I go to court I sit at the defense table and listen to other attorneys and their clients stories and pretend if I was the judge how would I sentence them. Most times my sentences are much more harsher than the ones the judges hand out. But when its my turn and I get up with my clients, they are all "innocent" or at the very least are victims of addiction or abuse and because of the abuse and this should mitigate the sentence in some shape or form.

    When I bought my house a few months ago, the first thing I did was went to the cops during preliminary hearings and asked them where were the areas where they received the fewest calls, I then went to our investigator and asked him where were the areas he never had to go interview a witness/client in. And finally I went to two judges and asked them where they felt was the safest areas in town.

    After all of this I went to my real estate agent and told him where I wanted to live. Trust me if someone broke into my house, im not going to sit their and mitigate his actions because he might be a crackhead who lost his way. I'm going to plug him full of buckshot and file a request for compensation from the crime victim compensation fund to clean up the mess.