Two-Way Street


I often (well, I used to often) gripe here about the want of real-world experience (that is, experience outside the high school–college–law school track) in prosecutors. As a broad generalization, it works great.

I believe that before anyone is put into a job that includes making decisions about what punishment other people deserve for their misdeeds, he ought to spend a year or more being (metaphorically) kicked in the teeth, worrying about where next month’s rent is going to come from, how he’s going to pay for those car repairs, whether he can afford to see a doctor about that pain. More, he should have spent significant time accountable to other people for their health and safety. (Ex-cops, oddly enough, are some of the most reasonable prosecutors.)

But I’m not beating that horse today. Many prosecutors (those who have been there) agree with me, as do most criminal-defense lawyers.

It’s fine if we talk about it amongst ourselves, but don’t go throwing around “lack of real-world experience” as a negotiating position.

A good indicator of a prosecutor who lacks seasoning is retributive language, at least in all but the most heinous cases. A prosecutor who talks about what the defendant in a simple possession case “deserves” doesn’t have the wisdom we’d wish. But “you don’t have the wisdom I would wish” not a persuasive argument—the newbie prosecutor doesn’t suddenly become enlightened when told by some silverback that he needs to grow up.

And, folks, not every prosecutor who disagrees with us is wet behind the ears. The generalization often doesn’t work when applied to the individual case. There are many prosecutors who have the experience we’d like them all to have; they won’t always agree with us about the appropriate resolution of a case, but it’s not for want of compassion. Sometimes a reasonable compassionate human might believe that a little more jail time is the least bad option for a drug addict—some people need to be removed from society for their own good or for society’s. This is not a position held only by gung-ho tyros who think that “J.D.” stands for “wise person.”

If you aren’t intimately familiar with your prosecutor’s CV, how can you be sure that he didn’t spend two years before law school bussing tables to support his dying mom?

If we ask for something (like a second helping of dessert, or prosecutors with more real-world experience) we should show some appreciation when we get it. The prosecutor who’s doing her best to compassionately treat each case needs encouragement, even when she gets it wrong, to keep trying; she doesn’t need to be told that she’s done the wrong thing because she lacks real-world experience that she actually has in spades.

If you make the accusation and you’re right, you’re going to annoy the prosecutor and probably make him bow up, and you’re not going to get your client what he needs. If you make the accusation and you’re wrong, the same will happen, and you’ll be acting like an asshat to boot.


0 responses to “Two-Way Street”

  1. I fought hard with a prosecutor during his first year out of law school. He wanted to convict my client so badly that, after I told him his witness had an active warrant, he filled out a form, signing it as the “defendant’s attorney” to have her warrant cancelled so that she wouldn’t be arrested or couldn’t be cross examined about her active warrant at trial. It was clearly an unethical move, but he was so new that I think he simply didn’t think, being blinded by a will to win.

    We picked the jury and, as they were seated, he turned to me and said “alright,” agreeing to the previous offer I’d put forward, for my client to enter a guilty plea in exchange for a recommendation of time served.

    A few years later the prosecutor, my teenage client and I were in court, waiting for a judge to come in. When I told him my client’s mom was in federal prison, he turned to my client and asked “which one?” He went on to tell the kid that his mother was there too, and even gave him some tips about cheap hotels in the area.

    I suddenly saw him in a completely new light, with a new respect. I’d assumed his gung ho attitude and drive were the product of a naive, untested world view, of a privileged upbringing. Turns out, I was the one living in a fantasy world.

    I don’t tell this story around here, out of respect for him, since I don’t know how many people know this “back story.”

    But it helps me remember that it’s essential to bow to the Buddha consciousness in every person, so to speak. While I was quick to label prosecutors as not looking deeply enough at people, the truth was that I was the one committing this sin.

  2. Mark,

    Amen, brother! One thing I’ve had to learn – not always the easy way – is that even if you’re right and your being right stems from something you’ve got that the other guy doesn’t (brains, experience, the right training, character, honesty, what have you), citing that to him as the reason why he should listen to you is like banging your head until it stops hurting.

    It’s a bit like the old saying: if you think you’re arguing with a fool, the other guy certainly is.

    Keep up the good work, Mark!

    Jeff Deutsch

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