Should I Hire a Former Prosecutor as My Defense Lawyer?
Criminal Defense Lawyer by Calling, or by Default?
As the economy has struggled and hiring in the legal industry has slowed, there has been a proliferation of private practice ‘criminal defense’ attorneys. Many of these inexperienced defense lawyers promote their previous employment as prosecutors as though that experience crosses over directly to their ability as defense lawyers. Their sales pitch is focused on some sort of obscure, secret knowledge about ‘how prosecutors think’ (as if that’s a mystery to begin with…) or some sort of ‘inside track’ with the other lawyers in the prosecutor’s office that will result in getting their clients ‘better deals.’
Prosecution and Defense are NOT the same!
The idea that prosecuting criminal cases improves a lawyer’s ability to defend people is just as absurd as the idea that playing pitcher will somehow improve your batting, or that playing quarterback will somehow make you a better wide receiver. Of course, it helps to know where a pitch will fall in the strike zone – just like it helps to know the route that a wide receiver will run. But throwing fastballs all day will not improve your batting any more than throwing passes all day will improve your running. And prosecuting cases does not prepare any lawyer for the challenges of effectively defending those accused of crime.
Persecution or Redemption?
The mind-set necessary to successfully prosecute (persecute) people is entirely different from the mind-set necessary to effectively defend people accused of crime. Prosecutors believe that no police officer could ever make a mistake, let alone deliberately lie about anything. Anyone arrested must have done something wrong. And the ‘guilty’ must be punished.
True defense lawyers have seen police misconduct first-hand. They know that innocent people are arrested and wrongly accused every day. They also know that good people make mistakes and should not have to pay for those mistakes with everything they have ever worked for in life.
Cooperative Witness or Hostile Witness?
The legal skills involved in the prosecution of criminal cases are equally dissimilar to the legal skills necessary to effectively defend people. Prosecutors spend their professional lives conducting what is known as ‘direct-examination’ – questioning of friendly witnesses who want the same thing the prosecutor wants – a conviction. A typical direct examination of a police officer in a criminal case goes something like this: ‘What did you do? What did you do next? What did you do next?’ The police officer on the witness stand is all too willing to answer freely and help to fill in damning details wherever the prosecutor has left a blank spot in the case.
It really doesn’t matter if the witness is the police officer who made the arrest, the lab technician who tested the drugs in a narcotics case, or the Geneticist who performed the comparative analysis on the DNA samples in a sexual assault or rape case. The prosecutor just keeps asking ‘what did you do?’ and ‘what did you do next?’ and the witness just keeps on ‘educating’ the jury. The prosecutor really doesn’t need to know anything about the witness’ scientific field, either. Because law enforcement witnesses want a conviction as badly as the prosecutor does, they will eagerly fill in the blanks left behind by the prosecutor. Many times a scientific witness will help ‘cover’ for the prosecutor’s lack of knowledge by literally correcting a question before they answer it: “Well, Mr./Ms. Prosecutor, I think what you are trying to ask is ‘X’ – and the answer to that question is ‘science, science, science … the Defendant is guilty.'”
Prosecutors turned defense lawyers are dumbfounded when the police officers who once were so eager to help them from the witness stand now see them as ‘the enemy’ and refuse to concede even the slightest favorable response to the now defense lawyer’s questions. Controlling a hostile and often uncooperative witness requires mastery of ‘cross examination’ – a skill few prosecutors ever get the chance to develop. The only way to get a prosecution witness like a lab technician, or a Sexual Assault Nurse, or a Child Forensic Interviewer, or a DNA expert to admit the reasonable doubt in their testimony is to literally know the science as well as – or better than – the witness. But that alone is not enough. In order to effectively cross-examine a government witness, defense counsel must carefully draft every word of every question in order to be certain that the ‘expert’ witness cannot evade or avoid the question. This type of preparation is completely foreign to career prosecutors who have never had to work this hard to secure their 90+% conviction rate on the government’s side of the courtroom.
The “Buddy System” in Plea Negotiations.
The ‘inside track’ negotiating advantage that many prosecutors-turned-defense-lawyers promote to prospective clients is equally misplaced. Many prosecutors leave the district attorney’s office in hope of making more money than government employment has to offer. Those who stay behind often resent those who turned their back on persecuting those seen as ‘guilty criminals’ in order to make more money.
The hard truth is that prosecutors don’t make favorable plea offers based on friendship. They make favorable plea offers in cases that they realize there is a chance of losing at trial. The greater the chance of losing at trial, the better an offer the prosecutor is willing to make.
There are former prosecutors who have worked hard to become good defense lawyers. They care very much about their clients and they are diligent in achieving the very best possible outcome in each case they handle. But the very good defense lawyers who once worked as prosecutors will tell you that they didn’t become good defense lawyers ‘because’ of what they learned in the prosecutor’s office. No, they became good defense lawyers in spite of what they learned in the prosecutor’s office.
If you need a home run, look for a skilled hitter. If you need a touchdown pass, look for a skilled quarterback. And if you need someone to defend you against serious criminal charges, look for a skilled, experienced Criminal Defense Lawyer.
I represent clients facing Misdemeanor and Felony Criminal and DUI charges in the Greater Kansas City Metro Area and the municipalities of Johnson County, Kansas, including De Soto, Gardner, Leawood, Lenexa, Merriam, Mission, Olathe, Overland Park, and Shawnee. Call today for an initial consultation: (913) 322-3265.
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