Humanize the Defendant

March 17, 2014

After every court appearance, I take the time to document a summary of the case plus any quirky nuances I experience. Among these items are of course, the name of the court and prosecutor, name of the client, past history, charge/s at hand, and the agreed upon negotiation with the State. This data enables me to predict what type of negotiation I could reach when a similarly situated client has a case in the counties in which I practice. That’s what clients want to know- “What’s going to happen with my case?” Not only is this beneficial to clients, but when a colleague calls to ask about a particular prosecutor, I have more to say than just, “Oh, she’s great to work with.”

 

Day in and day out, I come across many similar and sometimes almost identical fact-patterns, and for some reason, in the same county, same courthouse, but with a different prosecutor, the State’s offer drastically differs. When this disparity is mentioned, the response generally is, “I’d never offer that.” Sure, but only 50 feet away, your prosecutor colleague did. What’s the beef?

 

A recent study sheds light on the inverse trajectories of police officers and prosecutors. Rookie officers aspire to help the members of their community by transforming lives, while veteran officers are much more callous and cynical about criminal suspects and the courts. For policemen, the lengthier their careers, the more paranoid and distrustful they become- manifesting a disservice to the community they have sworn to protect. On the flip side, “young prosecutors are often aggressive in their filing or plea bargain strategies and more resistant to defense requests for mercy,” but with time, they become more balanced and actually end up “regretting the highly adversarial, even cartoonish, posture they adopted in the early years of their careers.” This contest to prove self-worth and constant quest for trial is called Young Prosecutors’ Syndrome.

 

Of course no one is asserting that all young prosecutors nor all veteran officers are this way- there are exceptions to every rule- I know of many excellent young prosecutors and chivalrous veteran officers in several counties. However, in general terms, young prosecutors have a lot to prove to themselves and to others. By understanding that, defense attorneys can help young prosecutors drift into a new way of thinking about their professional self-image, moving from a black and white worldview to an ability to see shades of gray. Great defense attorneys need to help iron out the wrinkles in young prosecutors’ angular understanding. How can this seemingly impossible feat be accomplished? Simple. Humanize the defendant.

 

But what if the defense attorney cannot reach a reasonable negotiation- does he just avoid that prosecutor at all costs? People change with time. The prosecutor’s transformation ultimately takes time. So what does the defendant do? Pray that if he gets stopped and cited it’s by a rookie officer and then the case magically finds itself on a veteran prosecutor’s desk, who has the time to delve deeply into his/her case and appreciate the defendant as more than just a case number? You know why most prosecutors always refer to you as the defendant, right? Because it’s much easier to convict the defendant than John or Jane Smith; you are the defendant. Though it takes time, we can help accelerate the process for young prosecutors. Humanize your client.

 

I did something the other day, which I felt I had to do. I told the prosecutor that my client would like one minute to speak with you, face to face. She told me that’s a highly unusual thing to do: a represented defendant speaking with the prosecutor. I agreed, and I told her, “I’m a highly unusual attorney, but it’ll only take one minute.” I wanted the prosecutor to see the defendant, to listen to the defendant’s side of the story, and to understand that the limited information, which you used to label the defendant, is a one-sided set of facts that constitutes the worst cross-section of my client’s life.

 

The truth of the matter is that if we had perfect prosecutors, we wouldn’t need defense attorneys or even judges, but we’re all imperfect. Unless we see each other’s humanness- that is, our natural imperfections, our humanity, we’ll never progress.  Let's progress.  We all need a second chance, because we're all human and we are not infallible.

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