On the Criminal Defense Attorney Who “Knows” all the Prosecutors

by Jamison Koehler on January 19, 2015

“I can get you a good deal because I know all the prosecutors.”

This is what one of my competitors says to a potential client.  I know this because the client tells me.  She wants to know if I can get the same results for her.

There are three things wrong with this statement.

First, by suggesting prosecutors will offer better deals to their friends in the defense community, it brings the system into disrepute.  It might also violate D.C. Rule of Professional Conduct 8.4(e) which makes it professional misconduct to “[s]tate or imply an ability to influence improperly a government agency or official.”

Second, and more practically, the statement ignores the reality of a large and fluid prosecutor’s office such as the U.S. Attorney’s Office in D.C.  When I was a public defender in Philadelphia, 18 out of the 20 prosecutors starting out at the same time as I was had gone to law school with me.  We went through the same rotations at the same time, appearing against each other again and again.  So, yes, we got to know each other pretty damn well.

It was the same thing when I practiced in Virginia.  Every case I ever tried in Prince William County, for example, was against the very same prosecutor – the now infamous Claiborne Richardson.

But it is different in D.C. where prosecutors rotate so quickly – from misdemeanors to felonies, from D.C. Superior Court to U.S. District Court, from the trial division to appeals.  Almost every case I have ever had in adult court (and there have been many) has been against a different prosecutor.

Finally, the statement seems to assume that, even if the defense attorney did in fact know all the prosecutors, the client would want someone who is buddy-buddy with the same group of people trying to put her behind bars.  Mark Bennett has written about this extensively.  Most recently, there was this:

The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs.  As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer.

Bennett concludes:

We all have insider connections.  We all have friends in the DA’s Office and on the bench.  The lawyer who is marketing himself based on those connections has got nothing real to sell.

7 Comments on “On the Criminal Defense Attorney Who “Knows” all the Prosecutors

  1. It is impossible to mention knowing a judge or prosecutor without a client’s assuming that it will result in “special” consideration. The wisest course is to say nothing about such relationships — ever.

  2. So glad to read about this issue that seems to arise frequently. Competitors websites proudly tout the ‘former prosecutor’ tag, with the clear implication being their ability to get the inside deal. I prefer to sell a potential client on my current skills/knowledge and past track record. I can sell that without a sly wink.

  3. Having mentioned to former clients that I’d worked as a prosecutor before, my purpose was solely to try and help them understand the situation through the eyes of their opposition so they could see what they were up against and let them know the realities of the situation.

    As for “knowing all the prosecutors,” we all know that prosecutors trust certain defense attorneys whom they know well and distrust certain defense attorneys they know well (along with attorneys they don’t really know). A trusted attorney can basically vouch for their client and, assuming he knows the prosecutor’s preferences, get a result that 1) is not asking something that the prosecutor won’t give, and 2) moves the prosecutor toward slightly more leniency. As a defense attorney, I could get certain prosecutors to do things like agree to recommend bail for my client because they trusted my judgement of the person. As a prosecutor, I’m willing to take a chance when Ms. X says a defendant can successfully do an alternative punishment whereas I don’t trust a word that Mr. Y says.

  4. Piedmont:

    That is a very slippery slope (if you will forgive the cliche). You have a duty to do your utmost on behalf of whomever is standing in front of the judge. At the same time, you seem to be suggesting that you might argue more strongly on behalf of one client versus another based on nothing more than your “judgement of the person.”

  5. It may not be as bad as all that, though. For one, sincerity is hard to fake. If a defense attorney sincerely believes their client is either 1) not guilty, or 2) willing to comply with plea or bond conditions, it often shows through.

    More abstractly, though, it’s something like the benefit of having someone represent you. A lawyer who is polite and friendly to prosecutors, and doesn’t have a history of doing shady things, is going to have the prosecutor more likely to agree with his requests. He may or may not be a better lawyer overall, especially when it comes down to a very guilty client who doesn’t want to take responsibility, but for the limited purpose of getting something like better pretrial release conditions or an alternative disposition, it’s usually better. You want that guy to try and resolve your Domestic Assault or Embezzlement case; you may want the scorched-earth guy for your Rape or DUI charge.

  6. As an attorney who had never set foot in a court room until I got jammed up with a DWI/refusal in Fairfaix last year, I’m not sure I agree with the above. Being a numbers guy, I data mined several years of records from the courthouse to see who I should consider hiring to represent me for the DUI. What I learned from reviewing the data is that the typical outcome in an uncomplicated 1st DWI refusal is a plea to DWI in exchange for NP of the refusal. I saw that a small handful of attorneys; however, were EXTREMELY successful at obtaining non DWI dispositions for their 1st offender refusals.

    Needless to say, I hired the numerically winningest DUI guy out there. I’m sure you know him professionally.

    On my adjudication date I left the courthouse with no DWI and no criminal charge of any sort. Was it his mastery of the law that saved me? Maybe, but I doubt it. The DWI law isn’t that complex. My lawyer disappeared into an alcove for 5 minutes with the ACA and the cop, a sweetheart deal was struck, and my case was called at the VERY END OF THE DOCKET when everyone else had cleared out of the courtroom. Was that an accident? I walked out of there feeling like the facts of my case were almost incidental to the attorneys’ personal rapport.

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