The Other Hat

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Thursday, February 12th, 2015
The Other Hat

Last week in Far-Off County, I was the pro tem prosecutor in a felony case involving timber theft. This was odd for me. I am a defense attorney. I bleed the Constitution. I do not trust the government (and have no reason to). I deeply believe our justice system is flawed, biased in favor of the State (in both law and resources), and unfair to most criminal defendants.

But I had a job to do. Duties to carry out. An investigation. A personal tour of the multi-acre rural crime scene. Witnesses to interview. Grand jury. Indictment. Massive amounts of case-law research because of difficult and diffuse property law issues pervading the case. A tough case to prosecute even though I absolutely believed the defendant was 100% guilty and there was ample evidence of same.

To make things more interesting, I was also confronted with a defense attorney who is not only a good friend, but is brilliant and aggressive and clever and experienced, and is completely capable of kicking my tail unless I do everything exactly right—and even then she might still crush me. A magnificently formidable foe. I respect her.

As a defense attorney who has taken many felony cases to trial over the last decade, I have seen unfairness, dishonesty, convict-at-all-costs mentalities, and massive differentials between State assets available to prosecute a case vs. defense assets available to protect and fight for the defendant. There is no comparison. It is grotesquely unequal and unfair. Ask any defendant who has ever gone through a felony trial.

So I thought to myself, “This will be the fairest damn trial to this defendant that any defendant could ever have, period.”

That is how I attempted to conduct myself at all times while I served as the prosecutor in this case.

Although the defense attorney and I disagree (and probably always will) about some important issues of property law in the case, and although we fought (ferociously) over these before and during the trial, for the most part I sat silent while the defense attorney put on one hell of a fight before the jury.

I admired her as she attempted to assassinate my case.

I attempted to be quiet (for me, anyway), subdued (impossible, but I tried), and polite and respectful to everyone in the courtroom, including the defendant.

I stayed away from any weak evidentiary issues, made no real effort to get before the jury the defendant’s past nastinesses with the law (which would have convicted him in the case at hand, but that would have been incredibly unfair to the defendant, as well as unconstitutional), and did my best to keep the case and the trial focused strictly on what lay between the four corners of the indictment against him.

You know you are probably being fair and reasonable as a prosecutor when the defendant in a felony case, who is facing possible state jail prison time if convicted, personally thanks you during the trial for being fair and honorable and decent to him.

You can probably rest easy about whether you are being fair and just and reasonable as a prosecutor in a felony case when the defendant personally thanks you twice during the trial for being fair and honorable and decent to him.

And you can take it to the bank that you have been fair and just and reasonable as a prosecutor in a felony case when the defendant, after being convicted by the jury, having been found guilty of felony theft of timber, and now facing years of probation and restitution and fees and the harshnesses of felony probation—where a serious screw-up means prison time—comes up to you after the trial is over and, with tears rolling down his cheeks, thanks you AGAIN for being fair and honorable and decent to him.

“You could have f*cked me, but you were fair.” And he asked to shake my hand.

Which I did.

This trial was fair and just because I as the prosecutor made it so. It would have been so easy to not make it so. To seek a conviction at any cost.

I have seen a number of prosecutors over the years butcher and destroy justice in their malicious greed and sadistic need to get a conviction. I have taken them on, shed blood for my clients, fought until I dropped, wept when I lost, and cried again when I ultimately defeated them.

I will dismiss a case before I ever act the way they did. A prosecutor’s job is to seek justice. That is all I sought in this case, and nothing, not even a scintilla, more.

I wonder, despite the guilty verdict and felony conviction the jury delivered, if I will ever receive another pro tem appointment as prosecutor in another felony case in any county.

I doubt it.

After all, in my years as a defense attorney, I have learned time and time again that a criminal trial is not actually supposed to be a fair and just proceeding. Not really. That is just a grand illusion.

But it was the reality in this case.

Damn right.