Friday, December 7, 2012

Flawging at straws

Once upon a time a Texas blawger wrote for the sake of writing. His posts were informative and you could walk away with a bit more information tucked in that file cabinet in the back part of your brain.

Then he began letting his law partners contribute to his blawg and the drek began flowing.

The blawg in question is Liberty and Justice for Y'all. The blawg was the brainchild of Brandon Barnett. At some point he seems to have lost steam. Maybe it was the workload. Maybe it was he just ran out of things to say.

The other day a new post appeared on the blawg. It was written by his partner Jason Howard and I'm willing to bet that Mr. Howard was formerly employed as a prosecutor. I would also imagine that his former job is a major marketing point for Mr. Howard.

Why that matters to you, the client, is because when you look to hire a criminal defense attorney, you try to find one whom you believe knows not only the law but more importantly the procedure. 
Seeing as how the criminal justice system in Texas is adversarial (meaning two sides pitted against one another), wouldn’t you want the benefit of having an attorney that knows both sides rather than just one?
Of course you would.  Here’s why.  Defense attorneys that previously worked as prosecutors are going to be able to better recognize the value (or lack thereof) in cases where other defense attorneys without that experience would not.  In short, prior prosecutors know a good case for the state when they see one.  More importantly, they know when a case is dog $&*%.

I don't know how to break this to Mr. Howard, but even those of us who have never made a living trying to deprive our fellow citizens of their liberty know a bullshit case when we see it. If Mr. Howard has forgotten, one of the skills we were taught in law school was to recognize the arguments on both sides of the case. Anticipating the other side's arguments is the best way to build your own case.

And it doesn't take being a former prosecutor to do that.

Let's face it, the real reason a defense attorney highlights the fact he worked for as a prosecutor is to give the impression to a defendant that the attorney can cash in some chits with the DA. I know people in the office. They're my friends and my drinking buddies. I can trade my friendship for a sweet deal for you.
Attorneys that have always worked as defense attorneys don’t have the benefit of seeing firsthand the perspective of prosecutors.  Instead, they often can’t see past the defense side of the case.  Don't get me wrong.  I'm not so short-sighted that I think the only good defense attorneys are ones that have been prosecutors.  I'm just saying that there are a lot of advantages to hiring a prior prosecutor.
Nope. You just happen to have worked side-by-side with a number of the folks wearing the black hats. You've had more contact with the judge and you've laughed at more bad jokes because, well, he's the judge. You're reaching out for that desperate defendant who's looking for a miracle and who'll be more than happy to hire someone who promises to sell out his friends and former colleagues for that special deal.

Brandon, you still have a chance to save your blawg. Please don't allow it to become just another vapid marketing attempt. You have a voice. You have a perspective. Let's hear it once again.


Anonymous said...

I don't know about you Paul, but don't the majority of attorneys who have practiced criminal defense since graduation from law school have to supplement their income by doing wills, family law, personal injury, etc? If you spent 5 years as an ADA and then went into private practice, wouldn't you have more trial experience than the criminal defense attorney 5 years out of law school who has had to take whatever he/she could get?

Just a thought.

Paul B. Kennedy said...

A former prosecutor would have more trial experience - but that experience would be from the prosecution side which is a world apart from the defense side.

Young prosecutors try the same case over and over again. From voir dire to direct examination straight out of the predicate question manual to the same variation on close.

Trying to find holes in the state's case is vastly different from reading the offense report and talking to the arresting officer.

Defense attorneys who advertise that they are former prosecutors aren't hyping their trial experience - they are trying to give the impression that they have connections in the DA's office that can make a given case go away.