Monday, August 4, 2014

An Important Breakfast

In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar.  We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.

"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.

"I've been a defense attorney for about five minutes," I replied.  "I don't really think I've got the depth of experience on this side to do that blog post quite yet."

Over the past five years, I've revisited that conversation frequently.  There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor.  It could even be humorous.  I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it.  Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.

In the back of my mind, however, I did have an idea for a blog post.  It focused on one simple theme.

That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.

I'm not going to give any details of my client's case.  They aren't really relevant -- other than to say he was charged with a low level misdemeanor.  My client was a blue collar guy.  He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.

A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast.  Unfortunately, I had to be back in Harris County for a setting, and declined.

This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.

We had met two weeks ago in my office and we had gone over every last detail of his case.  I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal.  In the terms of factual evidence, it wasn't a very debatable point.  Despite my clear advice, he said he wanted to think about it.  I understood.

We talked on the phone a week ago and he said that he was still mulling it over.  He said he would call me back later in the week and let me know what his decision was.  I told him that was fine.

We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.

So this morning, we met for breakfast at a greasy spoon restaurant.  I got there before he did and ordered a coffee.  He arrived a few minutes later.  We talked briefly about the pros and cons of his case and I gave him my advice.  He listened intently, but he didn't really say much.

There was an uncomfortable silence while we ate our food.  I didn't want to press him for an answer as to whether or not he wanted to take the prosecutor's plea offer.  I knew he was processing the information.  Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence.  So, I made small talk with him.  The more small talk I made, the more I realized how very little I knew about my client's personal life.

"You know," I said.  "I don't even know if you are married."

"I was," he said.  I was about to make a joke about how many times I "was" married, but for some reason, I refrained.  I'm glad I didn't say anything.

"We were married for 29 years," he continued, "but she died of breast cancer in 2009."

"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.

"I broke my back in two places in an accident the next year," he said.  "I haven't really been able to move right since."  He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month.  He wasn't trying to elicit sympathy from me.  He was just telling me about himself.

He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.

"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"

At the end of breakfast, I picked up the check.  He thanked me for breakfast, but more importantly for meeting him for breakfast.  When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day.  As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.

When we got to court, I talked to the prosecutor.  Objectively, she was reasonable.  She said that she would agree to a "time served" offer, but she was going to raise the fine significantly.  I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer.  She wasn't all that interested in what he had going on in his life.

And the case was resolved.

So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?

What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole.  Generally, their judgment of a person is based on the crime they are charged with.  I don't say that in an accusatory manner.  That was how I operated as a prosecutor when I held that position.

As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history.  We get to know our clients.

Or at least we should.

I should have done a better job of getting to know my client long before "plea or trial" day.  I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day.  I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.

I could have done a better job of letting them know that my client was not defined by the crime he was charged with.

So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act.   A Prosecutor has more of a tendency to look at the act alleged and then judge the person.

That's the difference.  Everything else flows from that.

11 comments:

Anonymous said...

“[T]he horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policeman, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”


― G.K. Chesterton, On Tremendous Trifles

Anonymous said...

Enjoyable read. Thanks.

Anonymous said...

Have you learned anything about honesty? About respecting our Constitution and the rights it affords our clients?

A Harris County Lawyer said...

Anon 7:47 a.m.,

Are you accusing me of not knowing those things before, or are you just one of those "all prosecutors are evil" types that bring the defense bar so much credibility?

Anonymous said...

One of many challenges for the Scales of Justice is balance.

Alex Bunin said...

Good post. I think the lesson you learned is the hardest for lawyers to both learn and remember - that we represent persons. The alternate ending would have been for the lawyer (not you) to simply berate the man about not immediately agreeing to the result, which the lawyer believed was reasonable. It is counter-intuitive, but spending more time building that relationship most often leads to an outcome both the client and lawyer can live with.

Anonymous said...

After being on BOTH sides... I can say that most defendants do have a story to tell. Sometimes it's sob-story (meaning they blow up minor problems), and sometimes they genuinely live lives of despair and tragedy. (It's hell to be poor.)

I think that many prosecutors, especially young ones just starting out in Misd., tend to not have the life experience to tell between the two situations. From my experience in the office, I saw that the older Misd. prosecutors tend to be more willing to listen and have a more forgiving perspective.

I also think that any prosecutor that has 400-500 open cases will, over time, become numb to the stories. It's not that they are callous, but it's just a means of survival. I know it happened to me.

BLACK INK said...

Anon 7:47,

If Murray Newman is anything he is a man borne of honor and integrity. To imply otherwise demonstrates a complete lack of insight to the character of a man most lawyers should strive to emulate.

Anonymous said...

Best piece of advice I ever heard was that prosecutors have to have the ability to sort the "dumb" from the "bad." There's the guy that snatches a purse and pushes a woman down because he's desperate for money to buy drugs, and then there's the guy who does it to see the fear in her eyes...

Anonymous said...

I really don't care about the stories they have to tell. I'll listen but usually I'm pretty empathetic to their plight. They have made stupid decisions, regardless of the "Hindsight is 20/20" rule. When stupid people do stupid things, they must bear the consequences. As the Jim Carrey said in Liar Liar when his secretary, Greta, told him that a client knocked over another ATM at knife point and he needed his legal advice, "Stop breaking the law, asshole!"

Anonymous said...

Hey liar, liar asshole!!! Thank the good lord up above your not a public servant!!! Ie.... Attorney ect.
Already guilty !!!!! God see's all !!!!
Remember that!!!!