Thursday, September 13, 2012

Picking and choosing

"Yes, my witness was charged with forgery when she was nineteen years old. She pled guilty and was placed on probation. She did her time. But does that mean she's lying now? 
"She made a mistake when she was a teenager. Who among us hasn't made a mistake when you were a teenager? 
"But just because she made a mistake are we going to hold that against her and say that she can't be trusted to tell the truth?"
Okay, it's not quite a word-for-word quote of a closing argument I heard yesterday. It's pretty close and it certainly captures the point the attorney was making.

I agree with the sentiment. Too often we look at a person's criminal history and we make a decision right then and there as to what kind of a person he or she is. Sometimes you're right and sometimes you're woefully wrong.

More importantly, however, is the fact that that conviction will stick with her for the rest of her life. She will always be a convicted criminal. She will always have that conviction for a crime of dishonesty. That is one thing that can never be undone.

It's a common problem for our clients. The prosecutor pulls the priors and, with only having read one version of what happened, discounts anything the defendant says. The prosecutor doesn't care about the defendant's account because she knows that he has had multiple run-ins with the law in the past.

So you might be surprised that the words above didn't come from the mouth of a defense attorney. They came from the mouth of the prosecutor. And the witness she was talking about was the complaining witness in a rape case.

So, even though that same prosecutor won't believe a word that comes out of your client's mouth because of his prior convictions, she'll beg a jury to disregard that forgery conviction and believe every word that comes out of the witness' mouth.

It's all just part of the game.


LEB said...

As the prosecutor that made that argument, I think your judgement of me is off base. You say I'd never believe a word out of your client's mouth? How would you know? We've never sat down and discussed a case. I've signed your resets and that's about it. You're as quick to judge me simply because of my job title as I thought the jury would judge the Compkaint because of a prior conviction- without ever knowing a thing about her.

Paul B. Kennedy said...

There is a reason I did not name the court, the case nor the prosecutor involved. I understand why you told the jury that.

But I also understand that one prior misstep or criminal act is held against our clients forever. When it's the District Attorney that does something we're expected to forgive him because he made a bad decision or exercised poor judgment.

When a witness for the state has a history we're told not to judge him or her based on one episode.

We all make mistakes. Some worse than others. The mere fact that a person made a mistake should not be held over his head like a sword.