The Big Zee: Knowing When A Case Has Been Lost

by Jamison Koehler on June 13, 2013

He is a senior prosecutor. He doesn’t hide the ball or over try his cases. He is pleasant and reasonable, and he lets you know exactly where he is coming from – what he can do for you and what he can’t.

I was surprised he went forward with this particular case. As Wayne my investigator says, sometimes there’s just no telling. But domestic cases can be a challenge for the government, and this one was no exception:  There is always something more – lots of context – for the defense to work with, and we had a mother in this case who decided to reconsider things after calling the police on her son. From the prosecutor’s irritated tone when we talk about the case, I sense he is trying to send a signal:  Don’t involve the police unless you are serious about proceeding.

A prosecutor friend in Philadelphia tells me there are a couple of sure ways to give yourself away as a neophyte. One way is to object to things whether or not the testimony is hurting your case. Because clients expect you to be doing something, not just sitting there.  Another way is to have the witness repeat the entire direct on cross – including the damaging stuff – for lack of any more probative questions to ask. Finally, seemingly unaware that you do not want to bore or offend the judge in a bench trial, a neophyte will keep on arguing long after the case has been decided.

This particular prosecutor knows when a case has been lost.  He also knows when to keep his mouth shut, thereby preserving his credibility for future cases: I’ll submit on the record, he tells the judge. Although I have lost more cases against him than I have won, he is as gracious in defeat as he is in victory.

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