Why it matters if your defense lawyer used to be a prosecutor

Defense lawyers promoting themselves and using “former prosecutor” as a selling point has always been an annoyance – I’ve thought about writing about my opinion and I’m ashamed to say I never have mainly because I don’t want to offend fellow defense attorneys in my community, some of whom are incredible advocates, who are also former prosecutors.  But, since the “Liberty and Justice for Ya’ll” blog has invited discussion on the topic, let’s talk about it.

It’s not clear whether the author of the post is Brandon Barnett or Jason Howard – its says “posted by Brandon Barnett” but is tagged “Jason Howard.”  Either way, they ask the question, “Why it matters your defense attorney used to be a prosecutor:”

This one’s pretty simple.  E-X-P-E-R-I-E-N-C-E.  Not just trial experience (although that can be a tremendous advantage), but experience working in a DA’s office and thinking like a DA thinks.  When you work inside a district or county attorney’s office as a prosecutor, you learn how prosecutors operate, how they think about cases, and what makes them tick (or tick them off).

They go on to explain how the system is based on plea agreements, with each side predicting what would happen at a trial.  As I understand their argument, a former prosecutor knows how a prosecutor thinks, therefore they will be able to get you a better plea agreement.

Horseshit.  Why does it matter that your defense lawyer used to be a prosecutor?  Exactly the reasons that Justice for Ya’ll states – a former prosecutor tends to think like a prosecutor, unless and until they gain experience as a defense lawyer and if they are able to change the way that they think.  Prosecutors usually think in terms of guilty pleas.  They think in terms of victims and they are used to working hand in hand with law enforcement.  Some look down on criminal defendants with disdain.  They have been conditioned to see the defendant as the bad guy, to assume guilt, and in private practice that can translate to seeing the defendant/bad guy as dollar signs without much in the way of compassion.

Some former prosecutors sell themselves as having special influence – the public often believes that cases are “settled on the golf course,” and former prosecutors are often the ones that try to perpetuate this myth – I have had clients tell me that, before I was retained on the case, a former prosecutor told them that they had friends in the solicitor’s office, that they knew the judges, and that they would be able to “get them the best deal.”  Never mind that any statement like that is expressly prohibited by the ethics rules that govern attorneys in our state, it is a lie.  “The best deal” is not come by through asking for an endless supply of favors from friends in the solicitor’s office – it is come by through preparing a case for trial, doing an independent investigation, finding the reasons a case should be dismissed if they exist, or by trying the case.

I try to get along with all of our local prosecutors, but not one of them is a friend that I go out for drinks with, or play golf with (I don’t play golf anyway).  If I am going to do the absolute best for a client, it is the client that I need to be a friend to and not the person who is trying to convict them and possibly lock them in a cage.  My loyalties will lie with my friend, my client, and never with the prosecutor.

There are many local defense attorneys who are former prosecutors – some of them are terrible lawyers who seem to plead every case.  One of them informed me a few years ago that our job was to be a broker between the client and the government.  Some of them see criminal defense only as a way to make money – it’s potentially a better paycheck than the government was giving them.  Guilty pleas equal more money and less time invested.  Some of them are fantastic attorneys who truly care about their clients and who I would trust with my own case if it were my life on the line.  The best of them are not the best because they used to work for the government – they are the best in spite of the time they spent working for the government.

The traits that make a difference in a criminal defense lawyer are hard to come by and are not taught in the solicitor’s office – compassion, caring, genuineness, perseverance, trial experience and life experience.  A great defense lawyer is a fighter, which is not something that is taught in any office but comes from within, comes from the person’s own life experiences outside the courtroom.

Mark Bennett and Paul Kennedy have more on the subject.

15 Responses to “Why it matters if your defense lawyer used to be a prosecutor

  • Very well said. To accept the view that the best crim d lawyers were once prosecutors is to accept that it doesn’t matter what the lawyer’s core beliefs are regarding the criminal justice system, and that, one can simply change jerseys in the middle of the game (of life) and fight with equal conviction for either side. I don’t buy it. That would presuppose that the what your lawyer holds most dear is his/her heart (vis a vis criminal justice) simply does not matter – that the lawyer is simply doing “a job” and personal belief is irrelevant. First, lawyers are not simply performing a job – we’re not building widgets – we are putting ourselves through an enormously difficult strain every day because we have dedicated our lives to a purpose. This purpose (whether fighting governmental oppression and defending con rights or fighting corporate greed in the civil world, etc) is what drives us, motivates us, props us up when we are down, pushes us forward when everthing else may be pushing back. I would not want my lawyer to have decided one day that his/her purpose has changed as a function of seeking more income/independence/ etc. I don’t think it works that way. A courtroom is no place for divided loyalties

  • Good points, Scott. There are lawyers who perform well on either side and are detached as we are taught to be in law school, but that’s a quality that doesn’t lend itself to effective criminal defense work either. The best on either side are those who believe in what they are doing and who care deeply about it – they might have an epiphany and switch loyalties midstream but it’s rare.

  • Do you have any experience as a prosecutor in any Solicitors Office in the state prior to your work as a criminal defense attorney? I’m assuming by the tone of your blog post the answer is no. I’ve read your blog for some time but couldn’t recall if you had ever worked as a prosecutor.

    • I have never prosecuted nor would I. It is not in my nature to work to take away a person’s freedom, and in particular I could not enforce the drug laws. There is an associate in my office who is a former prosecutor.

      • I do not accept your premise that the job of a prosecutor is to “work to take away a person’s freedom…”

        But, leaving that aside for now, do you disagree with the original post cited that experience is an important tool for any trial attorney? You make some valid points in your response, but I feel like your post is too generalized and anecdotal, almost as if it’s directed towards the local attorney who told you the job of a defense attorney is to act as a broker between the client and the state.

        Full disclosure, I am a former asst. solicitor and I believe I gained valuable trial experience (as well as valuable life experience) during my time as an asst. solicitor that I would not have gained otherwise.

  • I disagree with the original author that experience as a former prosecutor always translates to desirable qualities in a criminal defense lawyer. The reasoning is in my post. I’ll qualify that and agree with you that trial experience, wherever it is gotten, is essential for an effective criminal defense attorney. Knowledge of the criminal laws, the court system and the players, and experience with how a case is made by law enforcement is also invaluable. This experience can be gained at the solicitor’s office, a public defender’s office, or in private practice.

    The point is that many people leave the solicitor’s office, go into private practice doing criminal defense, and don’t have a clue how to defend a case. Some learn, some don’t, and many play on the myths and misconceptions of the public to sell “connections” under the guise of experience as a prosecutor.

    The point is also that the most important qualities of a defense lawyer, including empathy and the ability to care about a defendant as a person, are hardly nurtured through experience as a prosecutor. Note that the author of the original post talks in terms of working out plea agreements, not trial. He appears to be a new criminal defense lawyer, grasping at the only thing he has to market himself.

  • I feel the core of a good attorney is compassion. It matters not what side of the fence you are on, compassion makes for a good prosecutor as it makes for a good defense attorney. Some say compassion is for the weak. I feel compassion is for the strong.

    I work as a prosecutor and have friends who are defense attorneys. I make a point of establishing a good relationship with them as communication is key. I do not view defense attorneys as “the enemy” but another attorney who is trying to do their job the best they can.

    I respect a defense attorney who defends their client zealously and I respect the work they do. I expect attorneys I go against to make me prove my case at every turn and I work just as hard to prove my case at every turn. For either of us not to do this is for us to fail the justice system.

    I wish that both prosecutors and defense attorneys would get rid of the moral disgust of each other. We both have a job to do and in order for justice to occur, there must be a prosecutor and defense attorney.

  • The sad truth of the American justice system is that if you cannot afford the high cost of paying for an attorney to take a case to trial it doesn’t matter terribly whether you’re innocent or not. The public defender system (at both the state and federal level – and in particular the CJA panel system at the federal level) is a weak mechanism when it comes to truly representing the innocent – for the most part.

    If you are charged with a heinous crime such as the murder of a child (Casey Anthony is a great example – look at the depth and magnitude of her defense team) then you will generally have a high quality defense team with somewhat unlimited resources. However, if you are facing a white collar fraud charge but cannot afford a paid attorney you could very well spend decades in prison.

    I was indicted in July 2011 of federal mortgage fraud conspiracy and wire fraud for four homes I purchased in 2006 as part of a “home flipping” strategy because a good “friend” of mine who owned a mortgage company convinced me that there was no possibility of his company doing anything illegal. Despite my skepticism he ultimately did convince me that there was no way his company could be involved in illegal activities (due the fact that the federal probation office was scrutinizing every single transaction to assure that nothing illegal was going on at his company).

    Despite the fact that he had literally hundreds of similar transactions every month for 4-5 years I was the only person indicted. I face trial next month, and I am fairly certain that I am going to end up representing myself at trial. Why? Because the CJA panel attorney appointed to represent me was a 35-year federal prosecutor who simply refuses to believe in my innocence (he hasn’t even started focusing on my case yet as he has had murder trial after murder trial for the past year that he has represented me). I have a very good case, and I believe that I will be exonerated at trial. But knowing that I am going to have to represent myself is an extremely disturbing situation. The court even restricted our investigative hours to 36 hours total! And there were some 40 witnesses who needed to be tracked down and interviewed. I had to pick 6-10 witnesses I felt were strongest possible witnesses for my case.

    Every single point I’ve made this guy has tried to shoot down in terms of why it will not be allowed in (claiming witnesses can’t testify stating their testimony would be hearsay when it is in fact directly related to things that I told them at the time of the transactions – or stating that the circumstances surrounding my software company would not be allowed in as evidence because it is irrelevant to my case when it speaks directly to charges in the indictment that I lied about my 20-year history with my company as well as to my income – which was approved by my board of directors). And he has repeatedly stated that he finds it hard to believe that anyone who can read English wouldn’t read documents at a mortgage closing. I have told him that if someone buying a home they expect to own for 20-30 years doesn’t read the documents (really, if you’re not an attorney who does read these things?) then why would someone who expected to own these homes 90 days or less? We even have the lady from the title company who did three of the four mortgage closings stating that not only did she not explain the documents to me (she just told me where to sign) nor did I read them (she says she assumed I understood them), but she also says that she doesn’t even know what a primary residency clause is – and she did not explain this concept to me. Despite the overwhelming evidence of the fact that I did not know that these transactions were illegal we also have the logic of the situation. There was a reason he wanted me to do the transactions, and I had ZERO personal gain from doing them. Had I known that they were illegal there is absolutely no way I would have done them. In fact we even have an audio tape of a board meeting where I repeatedly state that if the board didn’t approve my salary increase (a requirement of my ability to qualify for the mortgages) then I would not do them because I refused to sign something that was not true. Despite all of this he still has repeatedly told me he doesn’t believe I am innocent.

    After I win this case I’m going to write a book – and it will be an extremely interesting read.

    • Did your case go to trial? Did you represent youself? Hope you were found not guilty and are free. Curious how it all ended.

  • I agree. If you dont have money and time to find the right attorney you will end up in Jail.
    I work as cyber crime consultant. Many attorneys lie that they have experience , but they dont. And this is the scary part. They call us to let them know if they can win the case or not.
    For the most part , they want to “cut” a deal and move to the next case.
    Same with prosecutors , it is all about presenting number of victories.
    If they lose , they get fired.
    So , in the end , the Justice system is based on numbers. Not on Justice.
    If you have money you hire a company like us ,,,,we “bamboozle” prosecutors , jurors , ..the entire universe. You walk out free.
    If you dnt have money….u end up with an attorney who claims having experience in cyber crime cases but really doesnt even know how IPv4 works… Sad..but true.

    • Reader0ne
      5 years ago

      Nick,

      Maybe you should actually become a lawyer.

      That way you’d know what the hell you were talking about in regards to the criminal justice system.

  • I’m just wondering if I feel that the prosecutor for my case is not doing their job is there a way too have them removed or replace? Especially, since the town I’m from is small.

  • Is it illegal for a DA prosecutor in one state to represent a defence case in another state?
    I have been told it is, but cannot find a reference.

  • Any thoughts on having a defense attorney sabotaging your criminal trial. I found out my defense attorney was my prosecutor on a prior criminal case( 10 years ago) , Is my case appealable? I clearly was not guilty.

  • What about when your prosecutor on a case becomes you public defender?

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