The Two Types of Criminal Defense Attorneys
by: Ryan • April 2, 2014 • no comments
The name of this post is intentionally provocative. Any attempt to divide criminal defense attorneys into two types is almost inherently fraudulent. It can only mean the writer (me) is painting with such a broad brush that the caveats and exceptions that must necessarily kick in might render any such crass distinction meaningless.
Well, here goes anyway.
What I'm thinking of is not so much different types as different comfort levels. Specifically, comfort with ambiguity. As defense lawyers, we must have some inherent comfort with factual ambiguity. It is okay to say privately, "I don't know if my client is guilty. Could be, maybe not. I wasn't there." Our job allows that uncertainty, since -- as long as we are zealous -- it doesn't really matter what we personally think.
This isn't the same, of course, for prosecutors. Prosecutors will say privately that they personally believe the defendant is guilty beyond a reasonable doubt, and they wouldn't prosecute otherwise. But human nature being what it is, this doesn't mean when exculpatory evidence is provided to the prosecutor, they start to waver in their absolutism and move to dismiss the case. No, they might offer a better plea bargain because they now might lose at trial, but the lack of doubt almost never goes away. (There are exceptions, of course. They're just incredibly rare.)
So the job of the prosecutor attracts the kind of person who sees the world in black and white, and to some degree, it requires it. Not true for defense attorneys.
Except when it comes to legal ambiguity. I submit that a sizeable number of defense attorneys are not comfortable with statutes or cases which are ambiguous, or legal arguments that cut both ways. I think this manifests itself in a number of ways, not the least of which is an automatic skepticism for any novel or untried argument. We are prepared immediately to advocate the facts in our client's favor in front of the jury, but the law? Many of us -- most of us? -- would rather it be cut-n-dried.
There are a lot of different ways to try cases, and we all have our comfort zones, but I would recommend, if you think you fall into this category, to step out of your comfort zone. And the reason is for the benefit of the client. Yes, it is true that if you preserve a novel issue for most defendants, you will likely lose and the issue won't be decided by the COA until it can't do your client much good. And that's even assuming the COA rules for you.
But that is only one possible benefit. Ambiguity helps tremendously with negotiations. I recently had a brief discussion with a defense attorney who would probably admit he doesn't file many motions, and he's not a "law guy." However, he had some nice things to say about the co-defendant demurrer, which he had seen because the co-defendant's attorney had filed it. However, he couldn't see it doing much good because if it won, the state would just re-indict.
Where he and I differ, though, is what the demurrer -- untried and untested but, I think, pretty compelling legally -- does to the prosecutor. She could just reindict without waiting for the judge to rule, but you don't do that if you're a prosecutor in Multnomah County until the office as a whole decides that's the way to go. Or she could reindict after she loses the demurrer, which will normally be on the morning of trial in Portland at least, but that creates havoc for the prosecutor. The case gets delayed. In-custody defendants get out. Cops are complaining for their time being wasted. Presiding court is unhappy that the case didn't get resolved. What's the best way a prosecutor can avoid all this? The same way a prosecutor can avoid just about any headache.
Make a better offer.
If the COA ever decides the co-defendant demurrer -- or other procedural issues of first impression -- in our favor, the value of the argument will largely go away. If the prosecutor knows she will lose the demurrer then she'll just reindict. It's the ambiguity -- it's that this case might become a pain in the ass -- that will get you better deals.
I tell my clients that the plea offer from the prosecutor is only occasionally, and then only partially, based on compassion. Most of the time it is based on either the prosecutor's fear of losing or the prosecutor's fear of spending a lot of time on a case he doesn't really care about. Smart prosecutors recognize motions that could go either way, and they will reward attorneys for filing them with better offers (not explicitly, of course). Less-than-smart prosecutors won't budge at all, perhaps, but those are the prosecutors who frequently get reversed. Eventually, they soften.
So, embrace the ambiguity. If you don't have a case that says you win, know that the first-time argument, if well-presented via a motion or a letter, will do as much as anything to get you a better deal. Not because you're comfortable with ambiguity. But because the prosecutor is not.
