"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, March 17, 2006

Thinking Without Facts

Well, from the sublime subject of Saint Patrick to the utterly prosaic job of righting the wrongs of the world. For instance, here and in an article in that respected journal, Slate, professional anti-police commentator David Feige opines that the TSA lawyer who violated a judge's rule not to talk to witnesses during terrorist Zacarias Moussaoui's trial was not doing anything unusual. For prosecutors, that is. "There is also no question that what Martin did happens all the time" he claims; "prosecutors do it all the time."

Now in the Slate piece he makes the unremarkable observation that all lawyers, prosecution and defense, "prepare" witnesses for their testimony. Courts have no problem with this practice, since it usually means a witness will be more focused and less nervous than if the rule was that lawyers could never tell them what to expect at trial. He doesn't really seem to have a complaint about that. But once a trial is underway, the rule is usually that the lawyers cannot talk to the witnesses about what has transpired during the trial or what other witnesses have said. This is to ensure that the witness does not alter his testimony to "fit" with other evidence in the case.

The exception to this rule is the defendant himself. He is allowed to remain present during the whole trial, listening to all the witnesses testify. His lawyer is able to speak to him, advise him about the import and effect of the trial testimony, and then he is allowed to testify, having been "prepped" by his lawyer and having ample opportunity to tailor his testimony to whatever evidence has already been presented.

But Feige's complaint is not with this, of course. No, his problem is with the "fact" that prosecutors coach witnesses during trial "all the time." Now, not only is such behavior contempt of court, it is also unethical and potentially illegal. So having accused only prosecutors of engaging in this behavior "all the time," (note: no word from Feige about whether defense attorneys might ever do this) does Feige bother with something as inconvenient as facts to back up his broad brush smear? Of course not. He feels it must be so because the government is so corrupt and trying to incarcerate all these victims of police wrongdoing. He does not need facts, he has his ideology, which is that of a true believer.

Got it? Prosecutors=evil. Obviously Feige is no fan of John Dewey, who said: "We can have facts without thinking but we cannot have thinking without facts."


Foilwoman said...

All attorneys prepare witnesses, but are ill-advised to coach witnesses. It's not always a bright line. And yes, defendants get to watch it all. They have the right to confront their accusers.

Anonymous said...

Well we all know that since Tom McKenna doesn't coach witnesses, none of his other colleagues in the fight to "confound the wicked" could possibly be engaged in such shennanigans. He demands hard evidence of this - examples, cases, dates, times. Funny how none of this is needed to get a judge to sign a search warrant in Virginia....
Of course Tom often cannot be bothered to provide evidence for his bald assertions either, but he is a good guy, you see - not a filthy defense attorney. I'm sure that he will think that this is moral equivelance reasoning: demanding that he hold himself to the same standard he holds others in argument. It isn't and to say it is is sophistry, but remember - he is a GOOD GUY.

Anonymous said...

And to clarify what I said earlier - I'm not saying that "demanding that he hold himself to the same standard he holds others in argument" is moral equivalency. Mr. McKenna just accuses us of engaging in moral equivalency whenever someone points out that his reasoning is a weak as Mr. Feige's. It is a rhetorical devise to allow him to dismiss a viewpoint with which he disagrees.

Anonymous said...

I don’t know about Tom’s office, but other offices do coach witnesses. Sometimes they come up with cute ways around specific sequestration orders.

Anyway, Tom is a government bureaucrat. He has never had any real clients (the state doesn’t count), therefore his perception on this is a little na├»ve.

In my 15 years of practice, I have am convinced that this happened about 6 or 7 times. Usually the more people involved on the government side, the more likely this is to happen. This trial, because of its political implications, and sheer number of people involved is an ideal candidate.

Whether there is any prejudice from this activity is a matter of perception. Many judges (especially those with no experience representing real clients) will give the government the benefit of the doubt and engage in a “prejudice” “analysis.”

Faithmy said...

Once again, we beg anon to limit himself to ONE of the voices in his head. All of the voices should get together and decide which one sounds the MOST iritating and homosexual, then let it speak for all of you. Thank you.

Anonymous said...


What is your problem? There are serious issues to be discussed here. I think that Tom is being naive. Indeed, if anything this latest high-profile scandal has caused people to start coming out with their favorite “coaching” stories.

His naivete is understandable, considering his background. It is not meant to be an insult. Indeed, I am rather sure that within a few years he will quit the prosecutors office and start being a defense attorney.

Faithmy said...

SO the serious is Tom? I think the serious issue is nitwits who assume so much about another person. Tom will be a defense attorney? Have you ever even met him? No? Then shuttie shuttie.

Anonymous said...

I have not met him, but I have met many former DAs that are defense attorneys. Indeed, the defense bar of many cities is made up almost former DAs. Indeed, I have seen people like Tom go from fire and brimstone prosecutors (or prosecuties) to defense attorneys more often than I have seen college lesbians get married. They are a dime a dozen. Though some are quite good lawyers.

Faithmy said...

College lesbians are good lawyers?? Who knew?