Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009

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One strength of any good lawyer is communication. Lawyers are constantly required to communicate with clients, fellow lawyers and judges, to name a few. Communication skills, if employed with persuasiveness and respect, can often navigate a favorable outcome for clients. It is thus mystifying that communication is so easily forgotten when two titans of law attempt to negotiate a criminal case.

IF COMMUNICATION
is done respectfully and thoughtfully, the same thoughts can be conveyed to the prosecutor that might otherwise be disregarded as defense attorney rhetoric.

As a prosecutor for nearly six years, handling mostly violent crimes and other serious felonies, but also having served time in the trenches of District Court, I was often amazed at how particular approaches by defense attorneys could either keep me open-minded about their clients’ defenses or completely underwhelmed. Now that I have joined the “other side”, this observation is more relevant than ever. From Anne Arundel County to Washington County, and all counties in between, here are some “do’s and don’ts” to consider when communicating with prosecutors:

  • “When I was a prosecutor…” Okay, you were a prosecutor. A lot of lawyers probably have been. This approach does not tell the prosecutor anything about your good defense or why it is not in the State’s interest to prosecute. This approach is generally looked upon as condescending, as though when you were a prosecutor you would have done the total opposite and, thus, the current prosecutor is wrong. Save this speech for the grandkids.
  • “If you go forward, the State will lose.”  Really? Well, most prosecutors would take that challenge any day of the week. In fact, the challenge may prompt the prosecutor to dig deeper, work harder and prepare better. “Throwing down the gauntlet of personal challenge is not a great way to do business,” says Frank Gray, a former prosecutor turned criminal defense attorney in Glen Burnie. It’s okay to think this, but it is one comment that you should keep to yourself if you want to have the best chance of a favorable resolution with the prosecutor.
  • “Your victim is a liar.”  This may be both offensive and true at the same time. Consider communicating this same sentiment without arousing the natural defensiveness of prosecutors to come to the aid of victims. Consider something more persuasive, like, “I have a witness who is ready to testify and saw what happened and strongly disagrees with your victim’s version,” or “Your victim has a motive to exaggerate what occurred because of a contentious custody battle.” Once defense attorneys start throwing around pejoratives like “liar”, “cheater” or “fraud”, even if true, it gives the impression that the defense attorney has lost their reasonableness and is now simply acting as mouthpiece for their client. “It all boils down to the idea that those defense attorneys who are nice, professional and trustworthy engender much more cooperation and good will from us,” says Michelle Smith, Chief of District Court in the Anne Arundel County State’s Attorney’s Office. Give your prosecutor something concrete and viable to weigh and discuss with the victim. This softer approach will reap benefits for the client.
  • “If you don’t give my client a stet, then I will pray a jury trial.” Ah, District Court – the trenches of criminal law where humans urinating in public and canines defecating in the neighbors yard come together in blissful harmony. Most prosecutors in the District Court are overworked, underpaid and would appreciate one less case on their docket, even if they have to handle the case at another time. The primary responsibility of any District Court prosecutor is to manage the docket – that means calling cases in a smooth and timely manner to keep the docket moving. If praying a jury trial assists in that goal, then you have usually done a favor for the prosecutor, and maybe not gained that much for your client except another day in court. Stick with the facts about why it is not in the State’s interest to continue to devote time and resources to the case, when a stet with some conditions could appropriately handle the situation while also removing the case from the docket. Keep your persuasive hat on, and leave your ultimatum hat at home.
  • “My guy has never been in trouble before and comes from a good family.” This approach begs two questions: a) aren’t we all supposed to stay out of trouble as a general rule, and b) what is the relevance of your client’s socio-economic background? The prosecutor’s role is to use good judgment in deciding what cases to pursue and then secure a conviction in the case. It is the Court’s role to pass judgment and sentence the Defendant. Save your mitigation for the Judge. This approach often signals that there is no defense to the crime itself, otherwise, the defense – and not potential mitigation – would be the topic of discussion.

If communication is done respectfully and thoughtfully, the same thoughts can be conveyed to the prosecutor that might otherwise be disregarded as defense attorney rhetoric. Treat your prosecutors with respect, refrain from condescending and abrasive comments and the rewards for your clients will be plentiful.

Jennifer Alexander is an attorney at Brassel Law Group, LLC, in Annapolis. She concentrates her practice on professional liability and criminal defense litigation.



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Publications : Bar Bulletin: July 2009

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