Former Prosecutors III — A Specific Case

I’ve written before, here, here, and here, as well as here, about former prosecutors taking criminal cases. So when I read Rick Casey’s column in this morning’s Chronicle, Who I’ll Hire if I’m Caught, in which he explained why he would hire Kelly Siegler to defend him against criminal charges — because “if she can convict an innocent man, she can keep me out of trouble” — I immediately thought of a title for my blog post on the subject (first the title, then the post): Rick Casey Goes to Prison.

Luke Gillman beat me to it, though, with Rick Casey is Going Away for a Long, Long Time:

I don’t know what’s more appalling about that statement – the Lykos-esque logic or the idyllic notion of courtroom reality it reveals – that defense attorney Kelly Siegler would receive the same kind of treatment she has enjoyed as a prosecutor and that in fact, the craft of prosecuting and defending are interchangeable if not the same.

Kelly might make a great defense lawyer. She’s certainly got the trial skills. I’ve said that the things she has done, Article 2.01 be damned, that have earned her so much attention, are the same things that great defense lawyers do in courtrooms across America every day. But I’ve also often said that a prosecutor can win all of his cases and think he’s brilliant; a criminal-defense lawyer can win just a few and know that he is. Trial skills notwithstanding, I think it highly unlikely that Kelly will defend people, and less likely that she’ll be worth a damn at it.

When lawyers are fighting over very important things, what they believe is as important as what they know. Much mediocre criminal-defense lawyering in Harris County originates with lawyers for whom it’s “just a job.” Some criminal-defense lawyers, though, have reputations around the DA’s office as True Believer defense lawyers; it’s hard to picture them (Dick DeGuerin? Katherine Scardino?) leaving defense practice to take jobs as prosecutors.

By all accounts Kelly is a True Believer prosecutor. To even take criminal cases, she would have to go against her nature. Then if she wanted to do a halfway competent job she would have to set aside the prosecutorial tendency to credit police and complainants with truthfulness (cops perjure themselves routinely; they even have a name for it: “testilying”); she’d also have to set aside her judgmental, retributive nature and her desire to see evildoers punished. It might all happen, but not overnight, and that only gets her to halfway competent.

To paraphrase AHCL, if I were charged with a crime, I would want someone who answered the calling to be a defense lawyer, not someone hedging her bets. Some of Houston’s worst criminal-defense lawyers were once effective prosecutors. Only a great fool would trust someone who had spent 21 years as a prosecutor, left the office unwillingly, and started taking criminal cases to protect him from the might of the government.

This doesn’t exclude former prosecutors forever from the running — some of Houston’s finest criminal-defense lawyers are former prosecutors who found their calling after leaving the Office — but give ’em all a few years of proving that their hearts are in the right place as defense lawyers before you even think about trusting them with your freedom.

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0 responses to “Former Prosecutors III — A Specific Case”

  1. “But I’ve also often said that a prosecutor can win all of his cases and think he’s brilliant; a criminal defense lawyer can win just a few and know that he is. ”

    Gee, what a humble, well reasoned statement.

  2. What in the world are law schools teaching these days? How is it, Mark, that you of all people don’t recognize use of the rhetorical skills championed by Aristotle in The Art of Rhetoric?

    Rick Casey’s column was satire — a joke, if you will, at the expense of Kelly Lynn Siegler. It clearly was not a prospective endorsement of her skills as a criminal defense lawyer, not with that crack about convicting the innocent and the other comment about her discriminatory use of jury strikes.

  3. Mark:
    Your post confirms what I always knew was the truth. The prosecutors who became good defense lawyers were always defense lawyers, they just didn’t know it yet. I agree a prosecutor with Kelly’s mindset would have to change her leopard’s spots before becoming a worthwhile defender, impossible of course.


  4. SG, one of the points I forgot to include was that Herself, during the campaign, said something to the effect of “we’re not going to change who we are.”

  5. Defending a human being requires the ability to put oneself in that human being’s shoes. You’ve said as much here, Mark, and it is true.

    Maybe Kelly Lynn Siegler will acquire empathy now that she has been dealt what she considers to be an unfair blow. Perhaps, as a criminal defense lawyer, she will use that empathy to identify with her clients. And, maybe, just maybe, she’ll seek forgiveness through defense work for the legally reprehensible and morally unsupportable prosecutorial tactics that she’s engaged in all these years.

    One can dream of a better tomorrow, can’t one?

  6. I’m so glad I started reading criminal defense blogs and even happier I found good ones (pretty much all the ones you link to Mark). I had the idea that when I passed the bar, I would work as a prosecutor so it would give me the “edge” when I became a defense attorney.

    Thanks for saving me from myself 🙂

  7. You guys crack me up.

    Mark, you had to go on the Chron board for the first time I’ve seen to criticize Rick Casey for suggesting that Kelly might be a bad ass defense lawyer.

    You’ve been going on for months about how when the big lesson is levied on the arrogant, naive ADA’s, many of them will not endanger your income as a defense attorney – they will go to other walks of life. But at the first suggestion that the first of them, Kelly, might be a good criminal lawyer on the other side, you post on the paper AND you write your OWN post.

    The first ADA who might leave the courthouse for private practice, somehow, threatens you so much, you think it’s post-worthy, after months of going on about how irrelevant ADA’s leaving will be? HA!

    To suggest that you guys are the only ones who empathize with people is R-I-D-I-C-U-L-O-U-S. The vast lot of you have NEVER had to carry a burden of proof, much less with the word of one witness. Empathy? Y’all don’t professionally care if little girls are ACTUALLY rape victims. It’s not your job. If you got your way (for the proper fee – freedom is based on FEEdom, right? Bad lawyers are cheap), there would be NO murder or rape convictions. I guess, because the government makes all murders and rapes up, to attack innocent, unwitting citizens (unless they are poor, in which case, Mark, not on the appointment list, not my problem), for no predictable reason. Right. Because framing innocent people is so damn easy. Better to ignore the REAL crime, and frame people. Especially in a jurisdiction of 4 million, with only about 70 actual felony ADA’s. Prosecutors plot and plan, they have so much free time . . .

    Y’all seem to believe that people who are accused of things are innately victims. Versus the people who are really shot, stabbed, raped, murdered, vandalized, or whatever.

    Truth is – the best thing you have going for you, Mark, and your fee scale, is being able to look at people who got themselves cross with the law, and saying, well, don’t know about XXXXville, but here in Houston, the D.A.’s aren’t slouches. That’s going to cost you more.

    Get ready for it. “Well, if I have to pay this much, I might as well talk to Kelly Lynn. She has more trial experience than you. And she’s beat Race Horse. And she’s beat Dick. Four times. When they, as defense lawyers, didn’t have a burden of proof.”

    Don’t be afraid, Mark. I’m sure no one like Noll, or Siegler, or Storts, or Garrett, or well, the 40 or so other trial lawyers who have had more than 50 criminal trials in the last four years will touch your sense of justice. You guys think that because someone was a prosecutor they cannot do your job at least as well as you? In Texas, since there is no reciprocal discovery, ADA’s routinely have to plan their own case (BARD), AND anticipate the defense case, without knowing what alibi’s or other witnesses are coming. You guy are somehow MORE fundamentally empathetic, even though the only time you’ve talked to rape victims (the ones you were paid to disbelieve, I suppose), was on cross examination?

    Come on. The only thing you are more trained at in trial than prosecutors – is hiding the truth. Not exposing it.

    You crack me up.

  8. PV,

    I’m probably speaking out of turn and there are far better writers than I, but….

    what I took away from what Mark and others have written is grudging respect for her abilities as a prosecutor not only because she is intelligent but because she believed in what she was doing.

    If prosecution was her “calling”, I for one would wonder about her ability to defend. She might be great at it, but how long would she last? I think I could be a good prosecutor. I also think I would burn out fast because most of the job would go against what I believe in as a human being.

    but thats just me.

  9. Edin,

    First, you do not speak out of turn. Everyone should have their voice heard.

    You should wonder about Kelly’s ability as a defender when her calling was to represent victims. Part of that calling, is determining who really are victims, versus who aren’t. Prosecutors have an obligation to see that justice is done. They should never seek to convict innocent people. They should strive to make sure there are few victims. Victims can be victims of crime, or of criminal justice. I grew up under Kelly, and while she challenged me to be unafraid of hard cases, she never sanctioned me seeking convictions on people unless the evidence and the law showed those people were guilty.

    A friend once told me, my job as a prosecutor was too important to trust someone else to do.

    It’s wrong to convict innocent people. But it’s also wrong to let guilty people go free (Mark will weigh in on “victim-less” crimes momentarily)

    But, as a person who knows all the players first hand, I think you are generous in your evaluation of some of Kelly’s critics. Defense lawyers attack any flaw they can find in strong prosecutors. No one likes to loose. Even when they should.

    It’s easy to attack the person than the merits of the case against the client sometimes.

    Kelly is true blue. She might be aggressive. But I’ve never entered a fight I WANTED to loose. I want to fight fights worth fighting – ones that I believe I’m right in.

    Kelly may have no choice now – to feed her kids, she might have to represent accused people. Elections, I have learned, suck.

    I bet she can kick some serious ADA butt, even when her clients are guilty. She’s the best trial lawyer I’ve seen.

    Assuming of course, she decides to set up shop with the likes of Mark.

  10. pro.v, welcome back. Where’ve you been?

    I don’t feel that my livelihood is threatened by Kelly, by you, by Murray and Sylvia, by JoAnne, Dick, Rusty, Dan, Norm, JJ, or Michael Pham. None of you will ever be my competitors; there’s plenty of business for all of us, and I’m not the right lawyer for everyone.

    When a client comes in the door and I’m not the right lawyer for him, I’ll send him on to someone else. I’ve referred high-paying cases to Dick, to Dan, and to Norm. I’ll probably never refer one to Michael, but I might send one over to you or Kelly after you’ve proven your bones.

    Maybe you should read my post about the subject, in which I said that Kelly has the trial skills to be a great defense lawyer. My respect for her obvious skills is not at all grudging. You might make a great defense lawyer too. But you’re not one now. Hanging out a shingle isn’t going to change that. If you have the will to do it, you’re going to have to prove it.

    Prosecuting a case is not the same as defending a case, and I’ll bet I’ve tried more defense cases and got more two-word verdicts and beaten more punishment offers in the last four years than any of those lawyers who’ve tried a case a month. I’ll bet I’ve made less per hour on some of those cases I’ve tried than those lawyers, too.

    Over at AHCL’s blog, y’all tried to get Kelly elected because she’s a true believer. I believe you were right, and I agreed with AHCL that we want our prosecutors to be the ones who feel called. The same criterion applies to our defense lawyers.

    I know you’re upset by the result of the election, and I know that you’re worried about your future. I support you joining the criminal defense bar, and I’ll bend over backwards to help you succeed. But if you really think that prosecuting qualifies you to defend, you don’t know what you’re talking about.

    One more thing: in my only trial experience with Kelly, she was sitting second; it looked to me like she pushed her less-experienced lead counsel to make some bad objections that lost the jury. I even mused at the time whether Kelly might have deliberately sabotaged her junior’s case for some reason. I doubt it — it was probably just that her heart wasn’t really in it.

  11. There are a lot of really great lawyers. If I’m a client I want someone that cares about me and sees me as a human being and not as some incremental source of revenue.

  12. As a former prosecutor, twice, once in litigation and once in appeals, I absolutely agree with you.
    The first time I left the District Attorney’s office I was so seeped in “prosecutor vision” I often looked at a case and saw the prosecutorial strengths. I often missed the weaknesses. I was in a jurisdiction with a well deserved reputation for usually being fair and reasonable and that lulled me and others into a false sense that our clients were usually getting a fair deal.

    After the second time, I was in a jurisdiction that is notorious for its overzealousness, unreasonable indictment policeis,and ridiculous plea offers.

    I am now referred to as “true beliver” on the defense side and I suspect that is true. One thing I did was join defense groups, go to defense cle and hit the books. It is the most rewarding time of my legal career although I did enjoy prosecution.

    Many clients have told me they want a former prosecutor because they think you will know “the ins and outs” and are better able to get a better deal. My first response it to tell them that there are indeed others who may be able to get them a better deal and if that is what they want they may want to consult someone else. I will even give them names of those who I know are capable of getting much better plea offers than most of us in this jurisdiction.

    I tell them that a real defense attorney is a better choice – one who does not see the State as all knowing and all powerful. That defense attorney may be a former prosecutor but that credential does not gusrantee compassionate, quality representation.

    I have seen some prosecutors come out of the district attorney’s office and hit the ground running as a wonderful defense attorney. That is rare. I certainly was not one of them. I needed more than just my prosectorial expertise to become a real defense attorney. I am still working on it and will for the rest of my time practicing law.

    One advantage I had was originally being in a prosecutor’s offfice where the elected DA, who is still there after 30 years, told me the day he hired me that prosecutors and defense attorneys were not enemies. We were all professionals, officers of the court who had jobs to do and that anyone who did not do that job with zeal and passion needed to be doing something else.

    It took me a long time to really understand that-for awhile I couldn’t imagine why anyone would not be a prosecutor – after all we were the good guys! I have been blessed with the kindness of many who helped me learn that viewing any situation as a dichomity, especially one involving human beings, was a sure fire way to stunt my growth as a person and my development as a quality lawyer.

    Keep up the good work you do with your blog. While I do not always agree with you, I find you make me think, you challenge me and I am better for it.

  13. pro.victims,

    Kelly’s husband is a physician. I doubt her working as a lawyer will be necessary to keep her kids fed as you suggest. I swear, the histrionics are almost unbearable at times. This is the kind of thing Mark is referring to when he talks about the lack of perspective many ADA’s have. Might Kelly have some decisions to make that may impact on her family? Sure. But the Siegler family is not in any real peril. Plenty of other working poor families are, though, which pushes your statement from ridiculous to just plain insensitive and offensive.

    And, because I can’t resist, it isn’t difficult for the State to win criminal cases when you have a third chair prosecutor sitting on the bench as we have had in Harris County for far too long.

  14. I’ve been amused at reading the comments from HCDAO prosecutors about what great lawyers they are. But that’s because as a peace officer, I’ve had to explain the elements of the offense to them at intake. I’ve had pre-trial conferences on first degree felonies that only consisted of the prosecutor saying “make sure you read your report.” I’ve been in trial where the prosecutor failed to call important witnesses and then wondered why he lost.

    I know they have a big case load, but they always have. The difference is the people over there now. I can remember 20 years ago when you often received calls at home on Saturday and Sunday from real prosecutors who were preparing for upcoming trials. But except for a handful, those folks are long gone. They were the same people that knew what a case was worth, and didn’t make an outrageous offer just to force someone to trial.

    And, I’ve also been at bench trials before a visiting judge where you knew the fix was in. The prosecutor had no problem tanking the case because it had been decided that some connected person wasn’t DWI after all.

    Don’t get me wrong, they got some damn good lawyers over there, the true believers as you say. But a lot of them would be quite surprised if they went up against a competent defense attorney before an intellectually honest judge.

    And for that matter, a lot of peace officers would be surprised if they did too.

  15. Well Jack, surely you know it goes both ways. A DA at intake the other day fielded a call from a cop who wanted to charege a kid with inciting a riot because he turned off a light in the classroom and the kids got unruly. The same type of cop is they type who calls intake and wants us to take 4 felonies from a stop where four people in a car have a cold crack pipe under the seat. Ridculousness knows few bounds.

    I have had some HORRIBLE officers on the stand. Not always rookies, but guys with experience that can’t even remember what they told you five minutes ago, much less what they wrote, incorrectly, in the report.

    That’s the thing about anecdotal evidence–it’s made up of anecdotes.

  16. No argument that it goes both ways. The question is how do we fix it? When someone obviously does not know the law, like the inciting the riot example, do we blacklist them until they pass a HCDAO penal code test? What about the officers disciplined for untruthfulness? Are they still allowed to file? If you don’t know the law, or are untruthful, how do you get over the “credible and reliable” hump?

    I’ve seen the guys you talk about on the stand. Its embarassing.

  17. When the prosecutors and the cops are shooting at each other, there’s nothing for the defense to do except sit back and enjoy.

    Pro.v, your 8:03 Friday evening post (yours and my response to your prior must’ve passed each other by) illustrates not (a) that, like the rest of us posting on Friday evening, you probably have no social life; and (b) why great prosecutors don’t necessarily make good defense lawyers. You’re agreeing with me, no?

  18. I will give credit where credit is due. I only got better after having a defense attorney stick a report up my ass in court.

  19. Siegler would be a great defense lawyer if she wanted to be. Any one that knows her or tried a case against her knows that. She doesn’t need the cash so I doubt she does it. The voters screwed up. Elections have consequences. You’ll have a choice of two idiots in the fall.

  20. Jack – when they crammed the OR, I wonder – had you read it like the ADA asked? Did you leave out info from the OR that the defendant (and thus his lawyer) knew that the DA didn’t? I’ve always loved being surprised and embarrassed in front of a jury because the police failed to tell me something that should have been in the OR. Especially on first degree felony cases.

    I’ve always found my relationship with cops at the DAO to be one of mutual respect and disrespect – I trust that some know more than me, that I know more than some, that our jobs are different, and that we each have different expectations of each other. Unlike cops though, I didn’t get paid overtime for trial prep and trial work, or pretrial, or anything else for that matter. When making all those Saturday and Sunday phone calls, do it because it’s the right thing to do.

    Nevertheless, I’ve always tried to treat police officers with respect, even when we didn’t agree. I’ve tried to treat victims with respect when they had unrealistic expectations of the system. I’ve tried to treat defendants and their families with respect, even when they were unrealistic, or even threatening to me or my witnesses.

    No one is perfect. ADA’s, police, defense lawyers. Voters, too, I guess.

    Mark, as far as ex-ADA’s making good or bad defense lawyers – each lawyer is his or her own. Charlie Davidson laid some law on some bad folk, but he’s a hell of a good defense lawyer. A lot of defense lawyers, by contrast, left the DAO, because they weren’t good lawyers at all, and they persist in being bad. Then there are those who left the DA’s office because they wanted the courtroom experience, but didn’t want to prosecute at all, and now, they are answering their calling, and doing a fine job. I guess it’s the whole range.

    And, it’s true, I have no social life.

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