Letter or Spirit?

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I’d just “made my reputation.” “This is not the last case we’ll have together, you know that,” he said.

(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)

Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn’t been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)

Now, I’m not going to violate my personal ethics for my clients. I’m not going to break the law for my clients. I’m not going to disregard a lawful court order for my clients. Beyond that, though, nobody who’s trying to put my client in prison is going to get any breaks from me on a case unless the benefit to that client outweighs the detriment. I would never trade away my zealous advocacy for a client for the possibility of a better result or an easier time on some future case or a better reputation in the DA’s office.

In fairness to the prosecutor (because I’m a fair guy), I think he thought that I was violating at least the spirit of a motion in limine, if not its letter. But I was within the letter of the order, and such orders don’t have spirit; they have to be specific to be enforceable. If you’re trying to hide the ball from the jury, and you get the judge to tell me not to talk about baseball games or balls, don’t be too surprised when I start talking about bats or gloves.

Am I wrong?


0 responses to “Letter or Spirit?”

  1. When the accused are victims (even when they’re not), I assure you that clients pray their atty will have the fight in them that you have. I am not an atty, but am the wife of a man who has been falsely accused of something awful. We have an attorney who is competent, and who I have faith in. A few weeks ago he recommended my husband take a deferred adjudication, and he almost considered it out of fear even though he is 100% innocent.We’re both the 1st in our families to graduate from college, and it would all be thrown away for false allegations. I stayed up all night looking for info. that might change his mind. I found your blog and read one that discussed what you lose when you take a deal. Long story short, I woke him up at 3:43 am and he read it. The next day he politely declined the offer. I’m praying with all my might that justice will prevail.

  2. You are not wrong – you are exactly right. You are well aware that the reputation the ADA is talking about is a great one to have. I once did an Agg Assault trial in which I spent about an hour and a half hammering the key state witness to the point that she broke down and cried several times. Six months later she is assigned to me on a possession with intent case. At our first meeting at the jail she asked if I would be as aggressive in defending her as I was in defending the guy in the other case. If so, she would be perfectly happy with me.

    Good luck in the rest of your trial

  3. I’m itching to know the eight words…

    And the context, I suppose, if neccessary. Would make a great post wouldn’t it?

    (Although, I understand you’re busy right now.)

  4. I think his comment to you says more about him than it does about you. It’s difficult to advocate against someone who doesn’t believe in the defense function of the adversary process.

    Good defense lawyers, who believe in the system, always enjoy watching a good prosecutor advocate for his/her “client.” The same should go for good prosecutors. Those that don’t believe in zealous representation, should go do some other kind of work.

    The question is whether you did anything wrong, not what he thinks about what you did.

  5. Mark:
    You are not wrong. Force the prosecutor to do his job and make an objection. Force the judge to do his job and make a ruling. Probably just like you, I stopped worrying about my “reputation” with prosecutors a long time ago. Their “job” is to stop me from doing my “job” and if they don’t like it, who cares? We’re not talking about being dishonest, underhanded, and the like, but by golly they need to know they are in for a fight. When they know you are willing to walk the knife-edge, it puts them on edge too, and that is to your advantage. Take the advantage when you can, trial is a dog fight, not a cake walk!!


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