Saturday, October 27, 2012

The criminal defense lawyer: three jobs in one

The defense lawyer often has to do three jobs at once: the prosecutor’s job, the judge’s job, and his own job.  That is, when the prosecutor does something illegal at trial—whether intentionally or “accidentally”—the defense lawyer had better jump on it, bring it to the judge’s attention immediately and in exactly the preferred manner, and then ask for the proper remedy at precisely the right time.  If the overwhelmed defense lawyer missteps in any respect, and if the defendant loses at trial and appeals, the appellate court will blame the defense lawyer for not freezing time and correcting the prosecutor’s cheating (or ineptitude) at the time of trial.  But the law doesn’t just require that the defense lawyer keep one eye on the prosecutor while also doing his own job; the law requires that the defense lawyer do the judge’s job as well.

Legal fees: You get what you pay for?

From a defense lawyer’s standpoint, the simplest cases to defend are non-domestic fights.  You know, the good old-fashioned fisticuffs, often taking place in a bar or related setting, and often involving a self-defense claim.  The reason they’re “simple” cases is that they don’t involve complex pretrial or trial issues.  Normally, you simply have some eyewitnesses who testify as to what happened, and each side cross-examines them about their biases, motives, ability to accurately recount what they saw (or what they think they saw), etc.  Then, each side argues about the strength of the evidence, burden of proof, etc.  Unlike other cases, these self-defense cases usually don’t involve lengthy motions to suppress evidence, or time-consuming preparation for expert witnesses, or witness recantations to muddy-up the waters, or complicated “other acts” motions, or complex hearsay issues that can confuse the judge.  In other words, the classic battery case with a self-defense claim is the ideal case for a second-year law student’s trial advocacy course, or even for the new attorney fresh out of law school.  So how did one attorney get $100,000-plus in fees to defend a client in a four-day battery trial stemming from a simple throw-down at a trendy New York bar?

Saturday, October 6, 2012

Dear appellate court judges: prosecutors are laughing at you

When reading my weekly cases, I just saw that yet another prosecutorial misconduct decision was handed down by the appellate court.  Reading the decision reminded me how prosecutors are allowed tremendous leeway to blatantly violate the basic rules of trial practice—for example, by hiding evidence of innocence from the defendant or making improper comments to the jury—in order to win convictions.  And when defendants appeal their convictions, the appellate courts repeatedly decide that it’s not their job to deter prosecutorial misconduct, so they routinely tell the defendant: “yes, the prosecutor cheated, but too bad, your conviction stands.”  Now, that’s a big problem in itself, and I’ve written about it in the Seton Hall Law Review and the Marquette Law School Faculty Blog.  But it’s what happens next that really has our nation’s prosecutors holding their sides in laughter.