Real Life Prosecutor - Taking Q's Forum

[Anonymous User]

A question for all the prosecutors out there:

What was your experience at your very first trial? What kind of case was it, what happened, did you screw up, was your heart rate in quadruple digits the whole time, etc?

Mine was a theft case. He pretty much had nothing to lose (and the case was very open and shut). It was a guilty. I don't think I screwed up majorly, but I definitely was scared.

I did accidentally throw my pen at the panel during voir dire and then dropped a bunch of papers before my opening. It was embarrassing and now I never take pens with me up to the jury box.

[Anonymous User]

One of my colleagues was walking up and down in front of the jury box one time, and managed to kick her shoe off by mistake and it slammed into the box. Oops.

[Anonymous User]

My first trial as a full attorney (did about a dozen DUI's and one jury trial as a student practitioner) was a bench trial for a violation of visitation rights. When I called the father to testify he eventually started saying whatever the hell he wanted, and when I asked him to only answer my questions he said he wouldn't. Needless to say, the pro se defendant won and the father and his family booked it.

[Kivan]

bump

[Anonymous User]

bump

[Anonymous User]

A question for all the prosecutors out there:

What was your experience at your very first trial? What kind of case was it, what happened, did you screw up, was your heart rate in quadruple digits the whole time, etc?

Depends on what you mean, my first trial as a prosecutor was as a 2nd chair. Armed Burglary of a Structure - discharge of a firearm, aggravated assault with a deadly weapon x2 - discharge of a firearm, carjacking, Grand Theft. It was a wild ride in front of one of the toughest judges we had with one of the best prosecutors. I was terrified I was going to fuck it up, but I managed to hold my own with the judge. It's still one of my fondest memories (though explain to me how the jury came back burg structure - firearm discharge but not ARMED Burg Structure - firearm discharge).

My first 1st chair jury trial was a petit theft based on principal theory. Defendant had rejected diversion (Which would have kept her record clean). Defendant testified and I destroyed her on the stand - people still quote it to this day. Guilty, judge maxed her out.

In my circuit there is a certain level of ... animosity ... between the state and the PDs. The PDs have quotas (must file x number of motions, must have x number of trials, etc) and it really prevents negotiation and resolution of cases. We revoke offers after motions - which doesn't help them meet their quotas. We give offers at arraignment and get no responses until pre-trial conference (the calendar call before we pick the jury a few days later). Our local PD office is just a mess, IMO. People here have said they would prefer a PD over a Private - not in my circuit!

Some PDs are just doing their job, but I've had stupid shit taken to trial. We're more of a burn the ground/salt the earth type of division - the felony divisions at my office vary widely in sentencings/trials. Part of that is who your judge is and who your chief is in your division. They set the tone. If your chief is a hardliner you have to keep up, if they are a cream puff you need to give low offers because your boss is going to undercut you - or the judge is going to do it.

I've had an old as balls case (Defendant was capias for a few years) with a deceased VIC go to trial. We won. We had made him a sweet time served offer before trial and he rejected it. I have someone facing a minimum/mandatory life in prison, with 13 open burglaries and a rap sheet a mile long. PD wants single digit prison and probation. How about no way in hell, fuckface. I've been very unimpressed with most of the PDs in my circuit. I've had PDs tell me not to give them an offer because then they will have to convey it to their client and talk to them.

Discovery - we give PD everything we have, unless it deals with Confidential Informants, there are special procedures for that.

Rehabilitation/punishment/etc - I usually give a Defendant a chance at doing drug treatment in their first few cases, but after the 3rd delivery case or nth possession case - I'm done. I agree with whomever said earlier people aren't sitting in jail on simple possession cases. If they don't have a long record - they get offered probation. We make alternative jail offers when the Defendant KNOWS he cannot complete probation. I honestly don't give a shit about you getting treatment at that point. By the point they are getting jail, they've had multiple chances to get treatment. We always take into consideration mitigation that's provided to us - but I really don't give a shit that your client's been diagnosed with ADHD - ADHD didn't cause him to break into someone's house.

Drugs being categorized as a non-violent crime in the media makes me roll my eyes. The individual uses may just be addicts but they are giving $ to the traffickers and the dealers who sure as fuck aren't running around with a Red Rider BB Gun to protect their shit. People get murdered over drugs, people get shot over drugs, innocent people get caught in the crossfire, and I'm not cutting the people who subsidize this violence a break. You want to get it legalized, go ahead, vote on it. But don't break the law and expect me to ignore it. I'm all for treatment - but only up to a point.

Hiring - no one cares about grades, moot court is good. Knowing someone is even better. We can always pick out a political hire - they can't hide. If you're a political hire, but you know your shit - then it causes no problem in the office.

Stats - I'd say mid level city, our jurisdiction covers about 1.2 million people. My case load is about 225 which is high for our office. There's a unicorn in our office that has 90 cases, but that's through a combo of weak offers and a great judge. I get to work at 8ish, leave about 7:30PM. I like my job, I like my colleagues. I have maybe 1-3 trials a month. idk my win/loss rate, to be honest, I could look it up, but I honestly don't keep track of it like some people. I take the cases that need to be tried ... and the ones my boss makes me take to trial. I'm not dumping a case because there's a chance of a not guilty. I make a fair offer based on the facts and the Defendant's history, and if they reject it, we're going to trial.

[Kivan]

A question for all the prosecutors out there:

What was your experience at your very first trial? What kind of case was it, what happened, did you screw up, was your heart rate in quadruple digits the whole time, etc?

Depends on what you mean, my first trial as a prosecutor was as a 2nd chair. Armed Burglary of a Structure - discharge of a firearm, aggravated assault with a deadly weapon x2 - discharge of a firearm, carjacking, Grand Theft. It was a wild ride in front of one of the toughest judges we had with one of the best prosecutors. I was terrified I was going to fuck it up, but I managed to hold my own with the judge. It's still one of my fondest memories (though explain to me how the jury came back burg structure - firearm discharge but not ARMED Burg Structure - firearm discharge).

My first 1st chair jury trial was a petit theft based on principal theory. Defendant had rejected diversion (Which would have kept her record clean). Defendant testified and I destroyed her on the stand - people still quote it to this day. Guilty, judge maxed her out.

In my circuit there is a certain level of ... animosity ... between the state and the PDs. The PDs have quotas (must file x number of motions, must have x number of trials, etc) and it really prevents negotiation and resolution of cases. We revoke offers after motions - which doesn't help them meet their quotas. We give offers at arraignment and get no responses until pre-trial conference (the calendar call before we pick the jury a few days later). Our local PD office is just a mess, IMO. People here have said they would prefer a PD over a Private - not in my circuit!

Some PDs are just doing their job, but I've had stupid shit taken to trial. We're more of a burn the ground/salt the earth type of division - the felony divisions at my office vary widely in sentencings/trials. Part of that is who your judge is and who your chief is in your division. They set the tone. If your chief is a hardliner you have to keep up, if they are a cream puff you need to give low offers because your boss is going to undercut you - or the judge is going to do it.

I've had an old as balls case (Defendant was capias for a few years) with a deceased VIC go to trial. We won. We had made him a sweet time served offer before trial and he rejected it. I have someone facing a minimum/mandatory life in prison, with 13 open burglaries and a rap sheet a mile long. PD wants single digit prison and probation. How about no way in hell, fuckface. I've been very unimpressed with most of the PDs in my circuit. I've had PDs tell me not to give them an offer because then they will have to convey it to their client and talk to them.

Discovery - we give PD everything we have, unless it deals with Confidential Informants, there are special procedures for that.

Rehabilitation/punishment/etc - I usually give a Defendant a chance at doing drug treatment in their first few cases, but after the 3rd delivery case or nth possession case - I'm done. I agree with whomever said earlier people aren't sitting in jail on simple possession cases. If they don't have a long record - they get offered probation. We make alternative jail offers when the Defendant KNOWS he cannot complete probation. I honestly don't give a shit about you getting treatment at that point. By the point they are getting jail, they've had multiple chances to get treatment. We always take into consideration mitigation that's provided to us - but I really don't give a shit that your client's been diagnosed with ADHD - ADHD didn't cause him to break into someone's house.

Drugs being categorized as a non-violent crime in the media makes me roll my eyes. The individual uses may just be addicts but they are giving $ to the traffickers and the dealers who sure as fuck aren't running around with a Red Rider BB Gun to protect their shit. People get murdered over drugs, people get shot over drugs, innocent people get caught in the crossfire, and I'm not cutting the people who subsidize this violence a break. You want to get it legalized, go ahead, vote on it. But don't break the law and expect me to ignore it. I'm all for treatment - but only up to a point.

Hiring - no one cares about grades, moot court is good. Knowing someone is even better. We can always pick out a political hire - they can't hide. If you're a political hire, but you know your shit - then it causes no problem in the office.

Stats - I'd say mid level city, our jurisdiction covers about 1.2 million people. My case load is about 225 which is high for our office. There's a unicorn in our office that has 90 cases, but that's through a combo of weak offers and a great judge. I get to work at 8ish, leave about 7:30PM. I like my job, I like my colleagues. I have maybe 1-3 trials a month. idk my win/loss rate, to be honest, I could look it up, but I honestly don't keep track of it like some people. I take the cases that need to be tried ... and the ones my boss makes me take to trial. I'm not dumping a case because there's a chance of a not guilty. I make a fair offer based on the facts and the Defendant's history, and if they reject it, we're going to trial.

Wow, it's like we were separated at birth, went to different law schools, worked in different Prosecution offices, but had the EXACT SAME EXPERIENCE.

I'm not too fond of the PD's in my jurisdiction either. Most of them are young, inexperienced, and believe that EVERY CASE must be fought tooth and nail and that if they concede ANYTHING, then they are throwing their client to the wolves.

The better PD's are the ones who are older, more experienced, formerly worked in private practice, and they're doing this because they enjoy the stability of a gov't paycheck. They know a strong Defense case from a shitty one and will tell you up front.

[Tanicius]

In my circuit there is a certain level of ... animosity ... between the state and the PDs. The PDs have quotas (must file x number of motions, must have x number of trials, etc) and it really prevents negotiation and resolution of cases.

Holy fuck that is unethical as fuck. If clients don't want a trial, it's not our goddamn choice if we take their case to trial.

I sleep like a baby every night because it's never my choice whether a client pleads, does a trial, or testifies in his own defense. I make that clear to them every time. No matter how badly I believe a case should settle, if the client wants a trial, then he will get his fucking trial. And if a client maintains his innocence but wants to plead for XYZ reasons, then I will do everything I can to help him do that. Putting a quota on a criminal defense attorney should be unconstitutional.

The better PD's are the ones who are older, more experienced, formerly worked in private practice, and they're doing this because they enjoy the stability of a gov't paycheck. They know a strong Defense case from a shitty one and will tell you up front.

Ehhhhh... Clients don't like a lot of lawyers like that. They don't trust them. I'm quite moderate and reasonable compared to a lot of my coworkers, but I also do what a client tells me to do, even if it's something stupid like fight everything on a case where he is dead-to-rights guilty. PD work is different than private practice. You are representing a very delicate balance between society and the people society shits on. How you behave in front of your clients will be remembered by those clients for the rest of their lives. They come into this game already not trusting you, and that's bad. You need to prove to them that you care about their lives, even if they're beyond fucked by the law and the evidence.

The older guys who roll over on their clients when the evidence shows they're guilty aren't doing their jobs a lot of the time. Our job is not to objectively analyze evidence and find the appropriate solution. We aren't a guardian ad litem. Our fiduciary duty isn't an objective; it's subjective. Our job is to figure out what the client wants us to do and use the tools available to us to get the closest thing possible to that their stated goal. If that means fighting tooth and nail over a lost case, then so be it.

Not nearly enough prosecutors realize that a ton of the time a public defender is fighting over something, we know we aren't going to win. We aren't stupid. We went to law school just like everybody else and we can read black-and-white case holdings or statutes just like anyone can. But we have to put on the show to prove to a poverty-stricken, often relatively unintelligent client that we care about them, and the way we prove that to someone in the client's position is very different from how we would prove that to a middle class white American with no criminal record. The best prosecutors I know, know that it's all a game. We can talk and joke about how fucked my case is when the client is out of the room, but as soon as they come back from the bathroom, I'm 100% stone-faced and I'm going to get angry and make it look I hate a prosecutor that in reality I can't blame at all for charging my guy.

[Kivan]

Not nearly enough prosecutors realize that a ton of the time a public defender is fighting over something, we know we aren't going to win. We aren't stupid. We went to law school just like everybody else and we can read black-and-white case holdings or statutes just like anyone can. But we have to put on the show to prove to a poverty-stricken, often relatively unintelligent client that we care about them, and the way we prove that to someone in the client's position is very different from how we would prove that to a middle class white American with no criminal record. The best prosecutors I know, know that it's all a game. We can talk and joke about how fucked my case is when the client is out of the room, but as soon as they come back from the bathroom, I'm 100% stone-faced and I'm going to get angry and make it look I hate a prosecutor that in reality I can't blame at all for charging my guy.

I think that is a sign of bad client control.

What good is that when the "performance" results in no offers or reduction in charges?

"Look, if your guy pleads then I'll dismiss count xyz and I won't seek recidivist enhancement."

Instead of having that Come to Jesus talk with the client and explaining to them how dumb they are being, putting on a "good show" a lot of time results in them getting a worst result than if the older lawyer had "rolled over" on the client.

Now, all of this is different if you are looking at life in prison. In that situation, you have to go to trial because you don't have any other options.

[Tanicius]

What good is that when the "performance" results in no offers or reduction in charges?

It does a crucial amount of good if it means that client is going to be more trusting of the public defender office next time. It can be horrifically damaging to press a client into a good deal if it means they will hate the public defender next time they need one. With just about any misdemeanor or gross misdemeanor case especially, I'm playing the looooong game and trying to save this client's life by encouraging him to like and trust his lawyer just as much in the future as now.

For your offices that make the deal worse every step of the way, after each motions fails, that's the environment that in particular fails to understand the culture of poverty. If you'd give the PD a chance to prove themselves to the client by making a few hopeless middle finger motions to the prosecutor, then the client will actually understand that the deck is stacked and they need to plead. If you rely on your local public defenders to be the face of the injustice, to be the people who fall on the sword and press their clients into doing something they don't agree they should do ("client control"), then you're just helping ensure that the defendant will never understand the responsibility they bear for what's happening.

Instead of having that Come to Jesus talk with the client and explaining to them how dumb they are being, putting on a "good show" a lot of time results in them getting a worst result than if the older lawyer had "rolled over" on the client.

Well, yeah, of course it does. But their autonomy and personal choice matters. Their personal opinion about the risks and the severity of the consequences and the benefits of deals, winning, losing, etc, very rarely lines up with our own. Sometimes, hell, they just need some time (meaning, more than 1-2 court appearances) to process what they are up against. Sometimes they just need to see that the court or witnesses aren't agreeing with them. I can tell you for sure that this McDonalds formula for justice, where the deals get tougher and the court dates get faster, does no service to anyone but the people who don't care about the actual results. But more power to your office if you like it when defendants blame everything on their state-payed lawyer.

[Kivan]

Well, yeah, of course it does. But their autonomy and personal choice matters. Their personal opinion about the risks and the severity of the consequences and the benefits of deals, winning, losing, etc, very rarely lines up with our own. Sometimes, hell, they just need some time (meaning, more than 1-2 court appearances) to process what they are up against. Sometimes they just need to see that the court or witnesses aren't agreeing with them. I can tell you for sure that this McDonalds formula for justice, where the deals get tougher and the court dates get faster, does no service to anyone but the people who don't care about the actual results. But more power to your office if you like it when defendants blame everything on their state-payed lawyer.

Here's the bigger issue: If they are facing serious PRISON time, not jail, but PRISON. Then chances are they did something really really bad or they have a criminal record and this ain't their first rodeo.

The only time I recommended YEARS of confinement was when it was a violent crime that involved a victim or this was their 3rd time involved with drugs. At that point the Defendant KNOWS how this story is going to end. Johnny refusing the offer of robbery as opposed to ARMED robbery is because he's stalling and doesn't want to accept responsibility. (Assuming the Prosecutor has a strong case and legit evidence)

That's something he should've thought of before he decided to rob the victim.

There's several reasons why Prosecutors amp up the sentence recommendation:

1) They have other serious cases collecting dust in their cabinet and do not have the time to try every single one just because the Defendant doesn't want to go to prison.

2) Their victims are not too enthusiastic about getting on the stand and describing how Johnny broke into their house and stole their property and now they're stuck with a busted door and no one is going to pay to get it fixed or replace their stolen property.

3) The SURVIVING family members of the victim want the case resolved and do not want to deal with the heartache of watching the person who killed/maimed/assaulted/molested their loved one walking away scot-free.

[Tanicius]

Just to be clear here -- I'm not asking prosecutors to be nice to people who commit serious crimes. That's a discussion for another day. I'm just telling you why we often do things the way we do. We know damn well we're going to lose the vast majority of our spurious motions, but the fact is that it works wonders for "client control" if we can have a chance to prove to a person who, horrible criminal record or not, has had a tough life and doesn't trust people dressed in suits.

[Kivan]

Just to be clear here -- I'm not asking prosecutors to be nice to people who commit serious crimes. That's a discussion for another day. I'm just telling you why we often do things the way we do. We know damn well we're going to lose the vast majority of our spurious motions, but the fact is that it works wonders for "client control" if we can have a chance to prove to a person who, horrible criminal record or not, has had a tough life and doesn't trust people dressed in suits.

Maybe this because I came from a background similar to my Defendants, but your indigent clients will NEVER trust somebody in a suit. Present company INCLUDED. You are their lawyer, not their Pastor or Football coach.

To them, you might as well be the CEO of Apple or the Governor.

Unless you are:

- Kin
- From their neighborhood
- Go to church with their family

They will never fully trust you, and will throw you under the bus faster than you can say, "Ineffective Assistance of Counsel" if it means they'll get out of prison.

[Tanicius]

Just to be clear here -- I'm not asking prosecutors to be nice to people who commit serious crimes. That's a discussion for another day. I'm just telling you why we often do things the way we do. We know damn well we're going to lose the vast majority of our spurious motions, but the fact is that it works wonders for "client control" if we can have a chance to prove to a person who, horrible criminal record or not, has had a tough life and doesn't trust people dressed in suits.

Maybe this because I came from a background similar to my Defendants, but your indigent clients will NEVER trust somebody in a suit. Present company INCLUDED. You are their lawyer, not their Pastor or Football coach.

To them, you might as well be the CEO of Apple or the Governor.

Unless you are:

- Kin
- From their neighborhood
- Go to church with their family

They will never fully trust you, and will throw you under the bus faster than you can say, "Ineffective Assistance of Counsel" if it means they'll get out of prison.

I don't need them to emotionally trust me. I need them to intellectually trust me and at least recognize I'm not in on a conspiracy to help a prosecutor put another notch in his club.

[sublime]

..

[Kivan]

(Has never had a client in his life)

I'm actually in private practice now, but please don't let me stop you from pontificating.

[encore1101]

Just to be clear here -- I'm not asking prosecutors to be nice to people who commit serious crimes. That's a discussion for another day. I'm just telling you why we often do things the way we do. We know damn well we're going to lose the vast majority of our spurious motions, but the fact is that it works wonders for "client control" if we can have a chance to prove to a person who, horrible criminal record or not, has had a tough life and doesn't trust people dressed in suits.

Maybe this because I came from a background similar to my Defendants, but your indigent clients will NEVER trust somebody in a suit. Present company INCLUDED. You are their lawyer, not their Pastor or Football coach.

To them, you might as well be the CEO of Apple or the Governor.

Unless you are:

- Kin
- From their neighborhood
- Go to church with their family

They will never fully trust you, and will throw you under the bus faster than you can say, "Ineffective Assistance of Counsel" if it means they'll get out of prison.

I don't need them to emotionally trust me. I need them to intellectually trust me and at least recognize I'm not in on a conspiracy to help a prosecutor put another notch in his club.

To some defendants, the two (emotional trust versus intellectual trust) are indistinguishable.

At least half of the pro se appellate briefs/post-conviction motions that I've responded to have accused their assigned attorney of conspiring with the prosecutor and/or court. The problem is that some defendants don't have an understanding of the law/what is admissible. They'll insist that their attorney pursue a particular course of action, but their attorney refuses on legal/ethical/relevancy grounds, which causes them to not trust their attorney.

[lurklaw]

Kivan, you're so full of shit and in awe of yourself. It's sickening.

[Tanicius]

(Has never had a client in his life)

I'm actually in private practice now, but please don't let me stop you from pontificating.

I think this actually helps explain why you believe it's a client control problem rather than a cultural problem. Private paying clients are sometimes low-income, but not of the from-the-hood variety. There are some crazy paying clients, but not nearly as many as there are crazy and uneducated indigent clients. A customer paying money gives them a big boost in trust in most cases.

I helped on a murder case where the defendant thought the first chair defense attorney was having an affair with the prosecutor, because one day both the first chair defense attorney and the prosecutor both wore a blue article of clothing. If you think telling that guy "You need to plead guilty to save yourself from 20 extra years" would have done anything other than alienate him even further and made the trial even more impossible to win, you are kidding yourself.

[Kivan]

(Has never had a client in his life)

I'm actually in private practice now, but please don't let me stop you from pontificating.

I think this actually helps explain why you believe it's a client control problem rather than a cultural problem. Private paying clients are sometimes low-income, but not of the from-the-hood variety. There are some crazy paying clients, but not nearly as many as there are crazy and uneducated indigent clients. A customer paying money gives them a big boost in trust in most cases.
.

People don't appreciate what they don't pay for. It doesn't matter if they are crazy, sane, or anything in-between. People are always going to be hesitant to accept as "good legal advice" anything that was given to them for free (minus the indigent defense application fee)

The people who pay me to represent them on a trafficking drug or any other drug case are the same "from-the-hood variety" of clients that you represent.

They're just fortunate enough to have:

- grandmomma with equity in her home
- church members are willing to pool money together
- actually successful enough at selling drugs to be able to afford a private lawyer.

[Tanicius]

(Has never had a client in his life)

I'm actually in private practice now, but please don't let me stop you from pontificating.

I think this actually helps explain why you believe it's a client control problem rather than a cultural problem. Private paying clients are sometimes low-income, but not of the from-the-hood variety. There are some crazy paying clients, but not nearly as many as there are crazy and uneducated indigent clients. A customer paying money gives them a big boost in trust in most cases.
.

People don't appreciate what they don't pay for. It doesn't matter if they are crazy, sane, or anything in-between. People are always going to be hesitant to accept as "good legal advice" anything that was given to them for free (minus the indigent defense application fee)

The people who pay me to represent them on a trafficking drug or any other drug case are the same "from-the-hood variety" of clients that you represent.

They're just fortunate enough to have:

- grandmomma with equity in her home
- church members are willing to pool money together
- actually successful enough at selling drugs to be able to afford a private lawyer.

This can all be true and it doesn't really change why we have to take (lots of long, arduous, even absurd) steps to prove to PD clients that we care and we're worth listening to before we can effectively advise them.

[abogadesq]

How much discretion do you have in negotiating offers? Do you have to get approval from your supervisor?

[Kivan]

How much discretion do you have in negotiating offers? Do you have to get approval from your supervisor?

my office pretty much let me handle the cases however I needed. The only time I needed permission was for Murders or serious drug cases.

[Anonymous User]

How much discretion do you have in negotiating offers? Do you have to get approval from your supervisor?

We go by scoresheets which calculate a minimum prison sentence based on current charges and past offenses. If they score prison - I need permission from my supervisors in order to do anything other than prison. If they score below I can do pretty much whatever I want. If they are enhanceable (prolific offender, recent prison releasee) I need permission from my supervisor's supervisor to do anything but the minimum mandatory.

[Anonymous User]

Been doing it for about 5 yrs now.

You name it, I've prosecuted it: DUI's, Arson, White Collar, Unemployment Fraud, Murder.

Ask away!

How tough would it be for a recently licensed attorney, who has been practicing for under a year in real estate or a separate field to get into the DA's office? Passion is there along with past DA internship.