Former Prosecutors

I still see criminal-defense lawyers who used to be prosecutors advertising their time with the DA’s office as though it provides a benefit to their clients. Their argument runs something like this:

First, it’s better to have someone defending you who knows what attack to expect. Second, former prosecutors generally have more trial experience. Third, former prosecutors will often have more credibility with current prosecutors.

Imagine that you must choose between two lawyers who have been practicing for the same amount of time years. One spent several years in the DA’s office before he left (for whatever reason) and started defending people. The other has defended people since graduating from law school.

First, the guy who has been defending people for his entire career will have dealt with “attacks” from a much larger number of prosecutors than the former prosecutor has. He’ll have seen a much wider variety of prosecutorial styles, and — more importantly — will have developed counters to the various “attacks” he has seen. The prosecutor will have developed his own style and will have observed some other prosecutors’ styles, but won’t have needed to devise counters

Second, while it is true that the former prosecutor generally will have more trial experience than the guy who has been defending people for his entire career, the guy who has always defended people will generally have more criminal defense trial experience than the former prosecutor because while the prosecutor was trying to put people in prison the defender was trying to keep them out. 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. (A quick Google search reveals that that simile might merit some further development: here is a Baseball Digest article on “Mike Hampton, a rare pitcher who can hit.”)

Third, lots of people don’t have credibility with their coworkers; a prosecutor who had no credibility with his fellow prosecutors is not going to magically have any when he leaves the DA’s office. The courthouse credibility that counts is earned by fighting. If a prosecutor knows that a defense lawyer will fight for his clients, the defense lawyer will have more credibility and will have a better chance of getting a favorable resolution for a client without a trial. A former prosecutor, at the moment he leaves the office, has no history of fighting for defendants. His fellow prosecutors might think that he’s going to fight for his clients, but they don’t know for sure whether his heart is in it. If a former prosecutor has credibility as a defender, it is because of his work as a defender.

Fourth, putting people in prison requires one mindset (“government-is-good-I-must-enforce-rules”) while defending people well requires another (“government-can-be-evil-I-must-protect-people”). A former prosecutor can certainly change his philosophy, but the more deeply ingrained his pro-government beliefs, the more difficult it will be to defend people sincerely (and therefore well).

Philosophically, prosecutorial experience is a detriment to a defender. But this isn’t to say that a former prosecutor is necessarily a worse defense lawyer than one who has been defending his whole career. Prosecutors can change and redeem themselves. I know lots of former prosecutors who are great defenders. Some pitchers can hit.

The best advice for anyone looking to hire a lawyer is this: hire someone you trust. Trust is not something that can be measured or categorized. You can’t trust someone based on his resume. You can’t pick the right lawyer with a checklist.

If you need a lawyer, sit down and talk with as many as you can stand to. Find out what they believe, and why they do what they do. Take someone along with you on these interviews if you can — if you need a lawyer, you’re probably feeling a lot of stress, and having the advice of a trusted friend or family member can help you make this most important decision. After talking to as many lawyers as you can, decide which one you trust with your freedom. Then find a way to hire him.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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