Posts Tagged ‘defense attorneys’

Playing Games with Client’s Lives

Friday, January 28th, 2011

 

Criminal law is about as serious as it gets.  Our clients’ liberty, reputations, freedoms, rights, opportunities, property — and even their lives — are at risk.  What we do affects not just our clients, but their children, their parents, the victims, and the community at large.  What we do is not a game.

So why do so many defense lawyers play games?  Cute little tactics, essentially dishonest, which never work.  All it seems to do is hurt their clients.  And yet they persist.  Boggles the mind.

Our job is to minimize the penalty our clients must suffer — preferably none whatsoever.  We do that by giving prosecutors new ways of looking at the situation, by challenging the legality of evidence, by showing juries that the evidence doesn’t mean what the government says it meant, and by skillful negotiation.

We do not accomplish that by, for example, routinely filing cross-grand-jury notice in NYC without having discussed with our clients whether they’d even consider testifying in the grand jury, doing so solely for the purpose of getting a prosecutor to call, or just to jam up the prosecutor to make their life difficult.  At the very least, it pisses off the prosecutor, who is less likely to give a decent offer as a result.  An offer might be taken off the table entirely, on the grounds that nobody who thinks they’re innocent should plead to anything.  The lawyer loses credibility, is seen as basically dishonest, and so it’s harder for him to negotiate a better deal or persuade the prosecution that they might have it wrong in this case.

We do not accomplish that by making cute little arguments in court that have no chance of success, and only serve to piss off the judge.  Once again, the lawyer loses credibility, comes to be seen as dishonest, and so it’s harder to win legal arguments that actually have merit down the road.  It only does the client a disservice.

We’re not going to give a laundry list of examples.  Every courthouse has its own idiosyncrasies.  But you get the point.  There’s nothing wrong with taking advantage of rules and procedures to the client’s best advantage, but nothing is gained if that’s done in a dishonest manner.  The client actually loses.

The better practice is to be (more…)

Steering the Broken Machine

Wednesday, November 25th, 2009

Mississippi Gas Chamber

The Last Lawyer: The Fight to Save Death Row Inmates
By John Temple
2009 University Press of Mississippi, 234 pages, $25.95
Amazon.com :: Barnes & Noble

The world is loaded with books about criminal lawyers. They fill the shelves in the mystery and thriller aisles, dominate true crime and related nonfiction genres. After all, a book about what we do is almost a guaranteed page-turner. Conflict? We got it — trials, accusations, at least two sides fighting in every case. Character? Our characters range from the noblest of all to the most despicable and inhuman. Plot? It’s already there, from the crime to the acquittal or execution. And the stakes couldn’t be higher. We’re not fighting over love or money, we’re fighting for people’s lives and liberty.

So it’s no surprise that there are so many John Grishams out there, and so many nonfiction books about criminal defense. And with so many books out there, you’d think that there would be plenty that give a fairly accurate insight into what criminal practice is really like.

And you would be wrong.

For it is rare indeed to find a book that really does the job. There are plenty that entertain, grip the reader, and even have something worth saying. But books that really draw the reader into our world, and let the reader see it with our eyes and our experience? Such books are few and far between.

Which is why we were genuinely delighted to read The Last Lawyer, by John Temple, an associate professor of journalism and associate dean at West Virginia University. Temple is not a criminal lawyer, he’s not a mystery writer, and that’s a good thing. He’s the kind of writer who comes from the outside, and digs deep into his subject. Like the lawyers and investigators he describes in this book, he clearly put in the time and effort to find out what really happened, who did it, how it happened, and why. And then he took all that data and crafted it into a story that is no less powerful simply because it is true.

True stories almost always suffer from bad writing. “But that’s how it really happened” is a crutch for lame writing, an excuse for having told a story poorly. Yes, real life does not play out according to a scripted dramatic formula. But that doesn’t mean reality can’t be presented that way. The Last Lawyer, however, tends to avoid this trap. With few exceptions, Temple grabs the reader and doesn’t let go.

So okay, he’s a good writer. But what does he have to say? That’s the best part.

Because Temple really gets it. He really, really gets it. If you read only one book in your life about what it’s like to be a criminal defense lawyer, read this one.

-=-=-=-=-

When we’re reading a book that particularly engages us, it’s like we’re having a conversation with the author. We find ourselves picking up a pen and scribbling back at him. Books at our house sometimes become dog-eared and annotated beyond any hope of resale. Our copy of The Last Lawyer quickly joined their ranks.

Why, when we already do this stuff for a living? Were we picking fights, or pointing out errors? Not at all. Instead, we frequently found ourselves encountering an insight, or a way of looking at things where we hadn’t looked at it ourselves that way. And we’d go “oh!” or “aha!” And then we’d take that fresh insight and run with it a bit in our head, and it would lead to a new thought we’d always sort of known, but had never actually thought before.

Not as much as we do when reading Proust, Patrick O’Brian or Terry Pratchett. But often enough. Often enough.

-=-=-=-=-

The Last Lawyer takes you through Ken Rose’s decade-long fight to appeal the capital conviction of Bo Jones, a low-IQ Black man sentenced to die for a 1987 murder.

Trial counsel had done little of the work that needed to be done now, and the case had to be investigated from scratch.. Uncooperative witnesses, some who lied and others with good reasons to lie — these were the least of their worries. They had to deal with a client who just did not seem to get the concept. And worse, judges who didn’t get the concept, and couldn’t be bothered to make the effort in the first place. Prosecutors who were the opposite of sympathetic, who railed against attempts to make technical legal arguments, but who were perfectly happy to get a conviction on technicalities themselves. A broken legal system that, instead of seeking justice, becomes a machine for churning people into prison or the gas chamber.

The book takes you through ten years of this struggle, as Ken Rose and his team slowly and gradually discover the facts and arguments they need to save Bo Jones’ life. In the process, you get to see firsthand the best and the worst that our system has to offer. Like any other human enterprise, you see a handful of outstanding performers, another handful of ruinous subverters, and a huge majority of folks just going along to get along. You see a system with powerful inertia.

Our adversarial system is designed to achieve justice, but it needs honest and good-faith opposition to function properly. Both sides need to play by the rules, and try their best, if justice is going to result. And it needs judicial referees to keep a keen eye out, not only for fouls, but for merit as well. But the reader of this book sees law enforcement that isn’t always as honest as we expect it to be, prosecutors who stop trying to seek justice and instead get invested in winning at all cost, defense attorneys who stop protecting their client above all else and instead become mere grease in the wheels of this machine. And judges who have seen so many frivolous arguments that they can’t spot the valid ones any more, and who aren’t terribly inclined to look for them in the first place.

But there’s more to it than that. It’s not just the broken system. There is good out there. And you get to see that, too. The single most important variable in whether a case is won or lost is preparation. And you see how good lawyers prepare, do the hard work, take the time to do the job right. You see real dedication, not to ego or money or advancement, but to saving the life of a fellow human being. To seeking real justice. To making the system a little bit better, for all of us.

This is the day-to-day experience of a criminal lawyer. The sometimes odd personalities, the deep injustices, the soaring heights of the human spirit, and everything in between.

Go get the book.

7 Criminal Defense Lawyers to Avoid

Monday, July 20th, 2009

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

-=-=-

1) The Dilettante

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You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

-=-=-

2) The True Believer

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This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.

-=-=-

3) The Social Crusader

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Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.

-=-=-

4) The Whiner

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At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.

-=-=-

5) The Fraidy Cat

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It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.

-=-=-

6) The Caseload Crammer

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On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.

-=-=-

7) The Showoff

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Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.

The Prosecutor’s B.S. Meter

Tuesday, June 16th, 2009

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I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization that cops sometimes lie.

Her epiphany was published in Saturday’s New York Times, in an article headlined “Drug Suspect Turns Tables on NYPD With Videotape.” A pair of defendants had actual video evidence that the cops had totally fabricated the entire basis for their arrest, and they gave the video to Rochelle.

”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”

Scott has a typical defender’s take on this.

What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.

. . .

Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.

So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.

We didn’t want to comment on this, at first, because it so happens that we worked with Rochelle for a few years in Special Narcotics, and we knew and liked her. And frankly, she is well-equipped to defend her own self if she so desires.

But Scott’s piece, and a couple of the comments posted to it, kept nagging at us. There are some things we think really ought to be said here. So here’s our two cents’ worth:

First of all, a quick and unnecessary defense of Rochelle. We’ve known a whole array of prosecutors in our time, and Rochelle was one of the good ones. There certainly are prosecutors out there who are so misguided as to believe that their job — we kid you not — is to fight to convict anyone the cops bring in. We once walked out of an interview (with Dade County) where that exact philosophy was espoused. And there are plenty others who just put in their time to do a workmanlike job, without pushing themselves too hard one way or the other. But there are a significant number who truly believe their job is to achieve a just outcome, taking everything into consideration. Rochelle always struck us as being one of the latter.

And yet her bullshit meter seems not to have been working properly for nearly 18 years. What gives?

Speaking for ourselves, we like to think our own B.S. meter was working just fine — at least a lot of the time. We pissed off a lot of cops in our day. And there are some ex-cops who probably still rue the day that they lied to us. But there’s no way our B.S. meter was on all the time. It’s impossible.

We worked with a lot of the same detectives, over and over. You get to know the teams pretty well. They’re almost friends, some of them. You learn which ones are straight arrows, which ones are clowns, which ones are unscrupulous or lazy, and which ones are just along for the ride. You learn that most of them are happily gaming the system to make as much overtime as possible. You also learn that most of them couldn’t care less whether someone gets convicted after the arrest is written up. And hopefully you’re able to listen to each individual with the appropriate level of disbelief.

But when you’ve worked with someone for a while, and gotten to know them, it’s natural to let your guard down. How skeptical are you likely to be of someone who’s been pretty straight with you for as long as you’ve known them? And even if you do retain some skepticism, so what? There has to be a reason to suspect that the facts are not what you’re being told, and most of the time there’s no reason to do so.

Part of this is the randomness of real life. Maybe there’s a little detail that’s not right — or perhaps too right. But that’s life. The truth is rarely ideal. So it’s not easy to tell when any particular glitch in the matrix is a clue to something more sinister.

Part of this is the sheer routineness of drug cases. There are only so many ways these crimes happen, and the facts don’t vary too much from case to case. When the story you just heard happens to fit the pattern of the past thousand cases you’ve handled, it would be strange to be skeptical.

So even with a fully-functioning B.S. meter, there’s no way you’re going to catch everything. You just do the best you can.

The irony is that, the longer one serves, even as one’s knowledge of street reality grows from rookie ignorance to near-expert mastery, one’s ability to sense bullshit decreases dramatically, for all the reasons just mentioned. You’ve known the cops forever, you’ve handled this same kind of case countless times before, and the story just rings true.

This is where we defense attorneys have an obligation.

I’ll give my defender readers a moment to recover. Yes, I actually suggested that we are obliged to do something here.

You okay? Good. Yes, we defense attorneys have an absolute duty to ensure that prosecutors are given all the tools necessary to flush out the bullshit. This isn’t burden-shifting, it’s an imperative of our role.

For street crimes, the only facts an ADA or AUSA has in any given case are those provided by the cops or agents involved. If those facts fit together, there is no reason to believe the truth is otherwise.

It is so rare as to be remarkable for a defense attorney to come to a prosecutor with new facts, or a new way of looking at the facts. But most of the time, whenever it happened to us or we’ve done it ourselves, it was most assuredly worth it.

In any given case, the prosecutor has already made up his or her mind about guilt, innocence, and the appropriate plea, based on the facts provided by the cops. No amount of whining or cajoling or begging is going to change their mind. And yet that is precisely the idiotic strategy used by so many defenders out there. The only way to change someone’s conclusions is to present new facts that change the conclusion.

This isn’t burden-shifting, it’s a defender’s duty. Our job is to protect our clients, period. If the prosecutor is holding all the cards, and is going to make the biggest decision of our client’s life, we need to do what we can to make sure the right decision is made. We have an obligation to extract from our (yes, probably unwilling) client and other witnesses the facts that will make a difference.

And you know what? When a defense attorney came to us with new facts, or a new way of looking at them, we listened. We didn’t listen to the whiners, but we did listen to those who truly advocated, who had something we needed to hear. And more often than not, at least in our experience, such advocacy resulted in a dramatically improved outcome for the defendant. We were known to even dismiss indictments, if the new facts warranted.

* * * * *

We can’t end this without revealing a dirty secret, however. Prosecutors are only human, after all, and even the best are subject to incentives that reduce the likelihood that their bullshit meter is on full power.

Some people just want to be liked, and so they go along with whatever the cops tell them. These people are patsies and pushovers, and tend not to last long as prosecutors.

Some people befriend the cops, and so become not the advocates of the People, but of the officers. They go to bat for their cops — and yes, “their” cops is how they’d phrase it — even against the cops’ own supervisors. Friendship and loyalty are powerful human traits, and it’s the exceptional person who can act in spite of, rather than in keeping with, such emotional forces.

And some people are ambitious. A prosecutor without ambition is something of an oddity, and one is never quite sure about them. Ambitious prosecutors want good cases. They want big cases. They want that one case that makes them feel like they’re actually making a difference, and not just holding back the tide with a teaspoon.

Well, the big cases don’t just land in your lap. They are brought to you. And they are brought to you by the cops. And the cops won’t bring them to you unless they like you, feel like they can work with you, and trust you do prosecute the case the way they’d want it to be prosecuted.

Are the cops going to bring their big cases and investigations to the ADA who’s always giving them a hard time? The ADA who busts their balls over every little glitch? The ADA who doesn’t go to bat for that RDO overtime once in a while? Hardly.

So this is a real, albeit unspoken incentive. (Actually, it’s not unspoken. We were told this plainly and clearly by multiple prosecutors and cops during our time with Special Narcotics. Sometimes as a warning of what to watch out for, but also sometimes as instructions on how to act if we wanted to start getting those juicy investigations.)

So an ambitious prosecutor has an incentive to act in such a way as to increase the chances of bagging the big cases. Does that mean such prosecutors are necessarily turning off their B.S. meters? That they’re consciously avoiding knowledge of the truth, or knowingly deciding not to challenge the story they’re getting. No, not at all.

It’s not a conscious process. It’s a perfectly human, unconscious thing. The decision is probably not passing through the frontal lobes. It just happens that way.

* * * * *

So there are all kinds of reasons — some justifiable, some not — for prosecutors to believe tales told by cops that may not be exactly truthful.

Knowing this to be the case, what should we defense attorneys do about it? Should we throw up our hands and bemoan the injustice of it all? That wouldn’t accomplish anything. Should we fight to change the system, so that it minimizes the inevitable injustices occasioned by its administration by human beings? Of course, and that’s been the role of our jurisprudence since Magna Carta, but it’s hardly useful on a case-by-case basis.

What we need to do is acknowledge that this is a phenomenon that occurs. That there are reasons why it occurs. And then take the necessary action on our own part to minimize the injustice. If we have facts that the prosecutor ought to know, then share them! Better to persuade one lawyer now than to hold on to the facts and seek to persuade twelve random jurors a year from now. If we have a perspective about what the facts mean, then persuade the prosecutor. Don’t whine or plead, just make a rational argument from shared principles. It works often enough.

And if push comes to shove, and you have a fight on your hands, then goddammit fight. But don’t just complain that the system is unfair.

Good defense attorneys like Scott Greenfield get this. Good prosecutors get it, too.