Former Prosecutors

I still see criminal-defense lawyers who used to be prosecutors advertising their time with the DA’s office as though it provides a benefit to their clients. Their argument runs something like this:

First, it’s better to have someone defending you who knows what attack to expect. Second, former prosecutors generally have more trial experience. Third, former prosecutors will often have more credibility with current prosecutors.

Imagine that you must choose between two lawyers who have been practicing for the same amount of time years. One spent several years in the DA’s office before he left (for whatever reason) and started defending people. The other has defended people since graduating from law school.

First, the guy who has been defending people for his entire career will have dealt with “attacks” from a much larger number of prosecutors than the former prosecutor has. He’ll have seen a much wider variety of prosecutorial styles, and — more importantly — will have developed counters to the various “attacks” he has seen. The prosecutor will have developed his own style and will have observed some other prosecutors’ styles, but won’t have needed to devise counters

Second, while it is true that the former prosecutor generally will have more trial experience than the guy who has been defending people for his entire career, the guy who has always defended people will generally have more criminal defense trial experience than the former prosecutor because while the prosecutor was trying to put people in prison the defender was trying to keep them out. The idea that criminal defense trial experience and prosecution trial experience are somehow interchangeable is ludicrous. They require entirely different skill sets, states of mind, and philosophies. Saying that prosecuting people makes a lawyer better at defending people is like saying that pitching makes a player better at batting. (A quick Google search reveals that that simile might merit some further development: here is a Baseball Digest article on “Mike Hampton, a rare pitcher who can hit.”)

Third, lots of people don’t have credibility with their coworkers; a prosecutor who had no credibility with his fellow prosecutors is not going to magically have any when he leaves the DA’s office. The courthouse credibility that counts is earned by fighting. If a prosecutor knows that a defense lawyer will fight for his clients, the defense lawyer will have more credibility and will have a better chance of getting a favorable resolution for a client without a trial. A former prosecutor, at the moment he leaves the office, has no history of fighting for defendants. His fellow prosecutors might think that he’s going to fight for his clients, but they don’t know for sure whether his heart is in it. If a former prosecutor has credibility as a defender, it is because of his work as a defender.

Fourth, putting people in prison requires one mindset (“government-is-good-I-must-enforce-rules”) while defending people well requires another (“government-can-be-evil-I-must-protect-people”). A former prosecutor can certainly change his philosophy, but the more deeply ingrained his pro-government beliefs, the more difficult it will be to defend people sincerely (and therefore well).

Philosophically, prosecutorial experience is a detriment to a defender. But this isn’t to say that a former prosecutor is necessarily a worse defense lawyer than one who has been defending his whole career. Prosecutors can change and redeem themselves. I know lots of former prosecutors who are great defenders. Some pitchers can hit.

The best advice for anyone looking to hire a lawyer is this: hire someone you trust. Trust is not something that can be measured or categorized. You can’t trust someone based on his resume. You can’t pick the right lawyer with a checklist.

If you need a lawyer, sit down and talk with as many as you can stand to. Find out what they believe, and why they do what they do. Take someone along with you on these interviews if you can — if you need a lawyer, you’re probably feeling a lot of stress, and having the advice of a trusted friend or family member can help you make this most important decision. After talking to as many lawyers as you can, decide which one you trust with your freedom. Then find a way to hire him.

0 responses to “Former Prosecutors”

  1. I agree that just because someone is a former prosecutor does not guarantee that they are a good defense lawyer. There is too much of a tendency to just plead people out without fighting for the rights of the defendant — the rights of a fellow human being — the sacred bill of rights. Prosecutors tend to depersonalize and tend to be less willing to recognize the rights of defendants. A prosecutor turned defense lawyer is scary but I suppose it is possible that they can change….
    Glen Graham, Tulsa, Oklahoma

  2. Im in the 9th grade, and i want to know which one will benefit me more. I see both of them different ways. I can be a prosecutor,and put innocent people in jail,or I can be a criminal defense lawyer and protect murders, axe heads etc. I am having trouble deciding what I am willing to do, well at least this is what im focusing on. I may have time, but not enough I want to be prepared for my future. not sit back and let my future prepare me. It doesnt go that way does it? I want to be passionate about what I pick. And I am looking for advice. Some people have told me that i will scavenge when i become a criminal defense lawyer, because if my client goes to jail, they cant or/and wont pay. Im confuse to many influences dont know whicj one is Right. HELP ME PLEASE!!!!!

      • Tyjanae, if you become a defense lawyer, you will not be defending the actions of murderers, rapists, scumbags, etc.. actions, you will be defending their right to a fair trial. This is in accordance with what is called for in the US Constitution.

  3. I am a defense lawyer, although I’d been a prosecutor for a great deal of my career. My rationale for choosing one over the other in the first instance was that prosecutors, because they are supposed to have discretion, can better act as “ministers of justice” by refusing to pursue cases where proof beyond a reasonable doubt is clearly lacking, essential evidence has been obtained unlawfully, and the ultimate power: negotiating a plea that conforms to what I thought was American society’s concern for justice. Defense lawyers, I reasoned, are compelled more to react to criminal accusations than they are able to shape the outcome of any particular case. It took me some years to realize that my analysis — while sound in theory, I continue to suppose — in practice, as the saying goes, it failed. Why? For too many reasons to recount here, institutional pressures and personal ambition, among other factors, always seemed to foil my idealism. In addition, and foremost, the tasks of a prosecutor became boring. So I became a defense attorney, and can tell you I have no admirers among our local prosecutor’s office. Why? Because I prevail more often than not? (I do not.) Because I am discourteous or uncivil toward what I’ve taken to calling “Junior G-Men,” since most of the prosecutors with whom I now interact are dewy-eyed ingenues? (Although given the roughly equal distribution of the sexes in our prosecutor’s office, perhaps I should call them “Junior G-Persons.”) No, that can’t be reason: I am nothing if not courteous when treated courteously. The reason, and this will come as no surprise to anyone who’s switched sides, is precisely that: I switched sides, and given the eternal and infernal conflation of a defense lawyer with his client’s alleged conduct, I somehow effected a personal betrayal of my former colleagues. Now, I still have some friends in my old office (the brighter, more enlightened ones who will nevertheless spend their careers stalking the courthouse halls with pallid skin and an overweening greyness about them), but these former comrades treat me no differently than do any other agents of the state. I don’t advertise, but if I did, I certainly wouldn’t boast about my former life as some kind of resume enhancer. That would be a lie transparent to any practitioner, and more important: I would know it’s a lie.

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