"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

Thursday, August 28, 2008

Providing a Maalox Moment for the Prosecution

Ah, what to do with the "bombshell" if you're a crim defense lawyer: the information that could break good for your case. Blonde Justice got the ball rolling by positing a hypothetical where a robbery victim backs off an initially strong identification of her assailant when questioned later by a defense investigator. What to do with the information? Approach the prosecutor and risk him strong arming the victim into making the identification? Or if you get a "good" prosecutor, perhaps he dismisses or pleads the charge down.

Blonde Justice concluded that if the prosecutor is "bad" and strong arms or threatens the witness into sticking by the identification, the next time
we do come up with that gem on an investigation (like the unsure witness), he will never get a courtesy call. And then it comes out at the trial, in front of the jury - with absolutely no warning to the prosecutor. I've seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor. But it is sort of fun to watch. They don't see it coming and then BAM! it's like a train wreck! And who doesn't love a good BAM! moment in a trial?
Mark Bennett jumps into to say that the
defender who holds back a bombshell for trial one time contributes uncertainty to the Government’s case in every case from then on. The less certain the Government is of its case, the better the Defense’s negotiating position. If the criminal defense lawyer has a reputation for springing unpleasant surprises for the Government in the middle of trial, he’s going to get better plea offers than if he lays all his cards on the table before trial in every case.
A Public Defender weighed in to offer a different view about bush-whacking the prosecution:
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk. If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.

My own view is this, speaking strictly for myself: if there is a genuinely exculpatory tidbit, such as the victim recanting, obviously, I want to know about it-- not so I'm not caught with my pants down at trial (unpleasant as that is), but because if I talk to the victim and she tells me, "you know, I really can't be certain" or words to that effect, I'm not going to try to force that person to fake certainty.

First, it usually doesn't work: on even a mediocre defense cross, she'll likely reveal her uncertainty anyway. And if a defense investigator has her saying she is really uncertain, that prior statement will come out. Either way, it's a fair bet that a recanting witness is not going to be "threatened" into being a credible witness.

Second, call me idealistic, but I have this thing about wanting to convict guilty people, and if a witness is expressing genuine doubt (not doubt artificially ginned up by an over-eager defense investigator), and there is no corroborating evidence to shore up the identification, the first question I ask myself is "why should I believe her beyond a reasonable doubt." If I can't answer that question, I shouldn't be taking the case to trial.

Of course, it remains that a defense attorney can save the "bombshell" for trial and get lots of jollies making the prosecution look foolish by bushwhacking the prosecutor with surprise information. Heck, it happens often enough, though it's rare that the surprise evidence is of sufficient quality to gain an acquittal. It's hard (in Virginia anyway) to put on a surprise alibi defense (here, if the defense files for discovery, he must reveal alibi information, so we either get that in advance, or if no discovery is filed for, we have a hint that an alibi is coming). But occasionally there will be the unpleasant surprise, which, if it had been revealed beforehand, would have changed my view of the case.

But as Mark Bennett alluded to, I'm going to remember if you're the kind of lawyer that would rather go for the public "gotcha" than work with me to find out the truth about the case. And if that attorney practices regularly in my jurisdiction, every attorney in my office is going to be told about it.

Prosecutors have alot of discretion, and more often than not, defense attorneys are looking for the best deal for clearly guilty clients when they come knocking on my office door.

Those who play hardball are remembered at those moments.


joelr said...

I'm confused. What is your objection to a defense lawyer "playing hardball" with your office? If he or she trusts a prosecutor to the detriment of the client's interest, wouldn't that be malpractice?

Tom McKenna said...

I have no objection to a lawyer playing hardball. That lawyer can have no objection to me returning the favor next time he comes looking for a deal.

In my experience, defense attorneys benefit much more from not playing hardball, which might win them a case, but will also win them a polite "no, thanks" when they come asking for a charge reduction or recommended sentence for a client that has no defense.

Art Deco said...

You mean your treatment of defendant B is dependent on the strategy his lawyer used in the case of defendant B?

Art Deco said...

I mean, in the case of defendant A.