I Was The State, Does That Help Me Defend You?

Most readers are aware that I had an earlier career as a prosecutor. My first blog, I Was The State, was named after this experience. To summarize- I spent two years prosecuting misdemeanor cases in two Texas counties (Bowie and Kaufman).

Did prosecuting cases make me a better defense lawyer?
I used to believe that my time spent as an ADA was valuable for my defense clients. Defending People’s (by Houston Criminal Defense Lawyer Mark Bennett) frequent criticism of ex-prosecutor advertising and experience led me to question my assumption. Mark has several good posts on the subject.
Here is a Bennett quote on former ADAs-

The idea that criminal defense trial experience and prosecution trial experience are somehow interchangeable is ludicrous. They require entirely different skill sets, states of mind, and philosophies. Saying that prosecuting people makes a lawyer better at defending people is like saying that pitching makes a player better at batting.

The longer I defend cases the more I realize that the two skill sets (prosecuting and defending criminal cases) are mutually exclusive. Prosecution can make one a better criminal attorney in general. Creating a better defense lawyer requires defense experience, inter alia.

Does my prosecution experience help my current clients? Yes, but not as much as more defense work would have. Being a prosecutor exposed me to the full time practice of criminal law early in my career. I wasn’t in a position to hang my shingle right after law school.

Prosecution allowed me to work a large number of criminal cases and learn the rhythms and procedures of criminal court. To continue the baseball analogy; I was watching a lot of baseball, taking a lot of batting practice. It was misdemeanor prosecution, low risk (for me) and high volume.

Defending People
What did I have to unlearn? What skills do not translate well from prosecution to defense work?

First, case management. A misdemeanor prosecutor is running a triage unit. Lots of cases have to moved…. NOW. My first DA compared the misdemeanor docket to moving a herd of animals. Some will be eaten by lions, die of old age, etc. The important thing is to keep moving the herd forward.

That’s how I viewed my bucket of misdemeanors. DWI and marijuana possession cases/convictions didn’t excite me. I didn’t have delusions that I was saving the world with each judgment of guilt.

That same herd attitude would make me a horrible defense lawyer. The case management I learned as a DA describes the worst of high volume criminal defense practice. If you are a criminal defense lawyer and charge a low enough fee, you can get a lot of cases.

I was looking at the Greensheet the other day and there was an ad for $200 misdemeanor plea bargains. I can’t imagine what kind of defense that will buy. I don’t want to find out.

Finally, I do get excited about defending DWI and marijuana cases. I enjoy a dismissal or not guilty verdict. Not just because they benefit my client. I believe the laws are wrong.

Working up a case-
As a prosecutor I could work up a case incrementally. I could review a police report and video and make a decision to file a case or not in a few minutes. If problems arose I could always dismiss it later. If it got set for trial only then did I really have to really work over the evidence and witnesses.

As a defense lawyer I have the opposite approach. I need to approach each case like it is going to trial. If I don’t, my client won’t get the best results. I have to call the witnesses, I have to consult with experts, I have to watch the video evidence, review the police reports, and then decide how to proceed.

Trial etc-
When I was a DA I had professional state witnesses (cops, intox experts) and my own team of investigators. There was also the feeling that the appellate courts worked to benefit the State and uphold convictions. Defense experts and theories were largely mocked and dismissed at my training seminars.

Only as a defense attorney did I learn why and how field sobriety testing is flawed, what the limitations of intoxilyzer machines were etc.

Philosophy/Attitude-
The motivation behind prosecution and defense work are different. As a prosecutor you want to believe you are making the community safer. Out of this hope was borne the classic State’s closing argument- the plea for law enforcement. It’s an easy story to sell jurors. Just convict this defendant and we are all safer.

As a defense attorney freedom, liberty, redemption, and forgiveness are my motivation. I can be honest about my feelings on the drug war and DWI zealotry (at least on this blog, not during closing argument). I can not only have libertarians ideals I work to save the remnants of the freedoms our country was founded on.

Final Thoughts-
I do not believe that someone who has been prosecuting serious felony cases for years can not defend a case. The possibility is there. A lifelong ADA would have a better chance than a PI/Bankruptcy lawyer.

However, only years of zealous defense advocacy can make one a better defense attorney. It’s not just the procedure and penal code. It’s the fundamental belief system that defines each side.