It was Kissinger who observed that “Power is the great aphrodisiac”. He was right, of course. Those of us who frequent the littered venues of our criminal courts on behalf of the often powerless know this all too well. While you might expect its judges who flex their muscles-the feared “robitis”-that’s not the real problem. More often its prosecutors, armed with the club of mandatory minimums, who personify Kissinger’s admonition.
Criminal lawyers find themselves much too often bargaining from their knees on behalf of some woebegone who got way in over his head and, while perhaps worthy of punishment, does not deserve to be crushed and destroyed. It’s times like these when we remember the late Judge Johnny Reynolds-he’d appreciate the diminutive-who taught us that a lawyer’s first obligation is to the client and the next is to your opponent, remembering that the lawyer has a client and if you can make that lawyer’s job easier and look good to the client, you should do so. Try to solve a problem, not make one. If you’ve never represented a client, that might be hard to understand. If your parents had done a good job, though, it shouldn’t be. The good prosecutors know the Johnny Reynolds’ rules. The bad ones don’t.
What brings this to mind are two contrasting experiences I have recently on the same day with two separate prosecutors. In the first I’ve been asked to represent a client for a difficult but imminent sentencing. I say I’ll get into the case if the prosecutor would agree to a continuance so I can get my hands around her problem and get time to develop an approach that might catch her a break. I call. I ask. How about two months. Six weeks is the answer. Why, I ask. Because that’s all I’ll agree to. But I can’t enter an appearance if I don’t have time to do the job right, and I’m not getting in without an agreement because, once in, I’m not going to be allowed to withdraw. Six weeks. I allude to the need to pay staff and keep the lights on and the doors open. Another two weeks won’t make a difference to your client. Six weeks. But why? In essence, It’s because I can. Six weeks. Nice. I do not enter an appearance.
The second experience is as different as it is refreshing. My client faces serious charges. He is being held pretrial and, candidly, I have not communicated with him as much as I should have. I tell the prosecutor I feel he is getting justifiably antsy and is beginning to express dissatisfaction with my representation. The response, Don’t worry, I’ll cover for you. We go before the judge and my opponent says, Your Honor, I owe the defense an apology. There’s a lot of discovery material which I owe counsel and I’m afraid my office has been slow in getting it to him so he can share it with the defendant. We’ll get that to him promptly. Now, sez I, that’s the way to practice law. It is no skin off his nose. It re-establishes my credibility with the client. And, ultimately, when I have to present a hard-to-swallow-but-reasonable offer I’ll be able to have a rational discussion with a client who believes I am acting in his best interests.
One of our good judges, formerly a good prosecutor like the one I just described, once said that when he came on the bench he was surprised by how little power a judge really had when faced with a prosecutor who chooses to wield the mandatory minimum cudgel. This is a fellow who, as a lawyer, could try the pants off of most any lawyer who appears before him. And yet, in trying to resolve cases reasonably he, like defense lawyers is left with cajoling and bonhomie to try to shake things loose.
According the Oxford Dictionary of Quotations, William Blake wrote
The strongest poison ever known
Came from Caesar’s royal crown.
Blake never met Johnny Reynolds, but they both understood the dangers of power.