Florida Criminal Law Blog

What can do to more effectively assist our clients in navigating the treacherous waters of the justice system and all of the personality types of the people within it? In my experience, generally I have found it extremely beneficial not to engage opposing counsel in their bad behavior whether it is over the phone, at deposition or in trial. For me, in representing people (and in life in general) it is better to not react “in kind” to bad or disrespectful behavior from opposing counsel. By engaging them I lose my effectiveness and give away my personal “power” to my opponent. Some lawyers won’t agree with me. Some of us believe “fire should be fought with fire.” Everyone has to find the right way to deal with anger. In trial, I believe if a lawyer gets so angry in front of a jury, at opposing counsel, at the judge or with a witness during a cross exam, the jury begins to think that the lawyer believes the case is more about him and less about what the facts of the case actually are. We lose our credibility and we can’t be the jury’s guide and teacher that will lead them to justice if we lose our credibility.

I have been extremely aggressive at times in my younger years as a trial attorney–yes, it felt good; yes, it looked good to other attorneys; and yes, my client thought it was fantastic. But the jury hated me for it and it was difficult if not impossible to be forgiven by them and regain “a connection” with them after such an episode. After witnessing an outburst, the jury believes they have witnessed the “true side” of me; perhaps I have been an impostor all along.
Of course, what works for one attorney may not work for others. It took me years to learn that I didn’t have to have the great oratory skills of some members of the Bar nor did I have to have to be the smartest lawyer in the Courtroom to be the most effective. What I needed to do was be myself, not me the lawyer, but me the person, which is the basic premise of what is taught at The Trial Lawyers College. I do need to be extremely prepared and someone who the jury would trust. I could make mistakes as long as I acknowledged them and sincerely apologized. Jurors distrust lawyers. I do my best to leave my lawyer man personality at home. In fact, I try not to have one to leave at home, probably an impossible feat, but something I try to do.

Is Connecting with the Jury Mutually Exclusive of Making A Record?

It is important to know the law and evidence code, the “rules of engagement” so to speak, and if at deposition or in trial opposing counsel is violating the rules, calmly and quietly make a record. Some prosecutors and lawyers who outright abuse their authority should be reported to a higher authority after an appropriate record is made. Prosecutors bullying witnesses who testify truthfully but favorably in support of a defense theory at deposition is an example of bad behavior that borders on witness influencing or tampering. Many of us have had cases where a witness who testifies favorably for a defendant becomes a co-defendant himself after his or her deposition. By charging these people who were only marginally involved with the offense conduct, they became scared and often become cooperating witnesses for the State. Is this not witness tampering or obstruction of justice by the prosecutor? I have found that if you are dealing with a very adversarial opponent the most effective way to disarm them is not to engage them — they want you to argue with them. Not engaging them befuddles them. I had a prosecutor tell me recently after some depositions that she hates doing depositions with me because I won’t respond in kind to her in arguments over the case. (I had told her when she was screaming at me because after her witness recanted at deposition that “I am not going to argue with you no matter what you say”). The case was ultimately dismissed.

Every case and situation must be judged on it’s own facts, and you must be guided by your own personality and intuition, but at times I will allow a prosecutor to act badly or berate me and/or my client in front of the jury without making an objection because I want the jury to see the true nature of the prosecutor. I do not believe that objecting at every opportunity even for valid reasons in trial benefits my client. Of course, the risk of not objecting must be considered and balanced with creating a record; however, I believe most people on a jury believe if a defense attorney objects we don’t want them to hear something that impacts negatively on our case. In a recent trial, I objected only one time during the prosecutors closing even though he had probably called my client “a liar” fifteen or so times. In this particular trial the evidence during our cross examination of the arresting officer showed that he had blatantly lied. The prosecutor, who is as skilled and talented a prosecutor as they have in the particular office, explained his officer’s lie as simply a “mistake that anyone could make yet" he was arguing to the jury that the defendant is a liar for putting forth his defense. The fact that his officer only made a “mistake” yet our defense theory was a huge lie seemed incongruous to our jury, especially with his repeatedly calling my client a liar. His anger towards my client and me became so vehement that he finally told the jury that I was asking them to violate their oath as jurors by finding my client not guilty. To this I was truly shocked and objected in an extremely aggressive tone. The judge severely rebuked him in front of the jury. He lost further credibility. In this situation, knowing the judge as I did and with his ludicrous comment, I felt certain the judge would sustain my objection before I objected. (The judge was also fed up with his calling my client a liar too I believe, as was the jury). Throughout a trial I try to “gage” my jury — are they giving me permission to object strenuously? Are they giving me permission to aggressively cross examine a witness? Also, as I sat and listened to the prosecutor call us liars, I wondered if the jury might be thinking why would the prosecutor be over reacting in such an angry manner if he didn’t have something to fear? Did he doubt his case? I hadn’t done anything to anger anyone in the case except him. I knew by his tone and denigration of my arguments that he might have believed our arguments had resonated with the jury. I also knew that his anger was hurting his own credibility.

Learning Why Some People Need or Want Power

Abraham Lincoln once said: “Nearly all men can stand adversity, but if you want to test a man’s character, give him power." The phenomenon called “power” changes most human beings lives and personalities. We see what can happen to the personalities of some lawyers when they assume the powerful role of judges. We can even see what happens to some lawyers when they become successful - some forget what enabled them to become successful to begin with, often times humility, extremely hard work and extreme preparation and an openness and willingness to learn from others.
As effective advocates for our clients we should make an effort to understand what can happen to a person when they are appointed to be a state or federal prosecutor. What pressures are on them? Do they get judged by their superiors by the number of cases they take to trial or are they judged by the number of trials they win? What pressure would be on us if we worked in their office? How much discretion do they have over their cases? By understanding them better, I believe we can be more effective advocates for our clients.

Different Personalities of Prosecutors and Lawyers

The following are brief descriptions of a few basic personality types of attorneys I have experienced as opposing advocates. This short list is not all inclusive by any means. I must also qualify what I say about "opposing advocates" or prosecutors applies to defense attorneys as well. I have had more than one co-defendant’s lawyer in a multi-defendant jury trial exhibit these same character traits to the detriment of my client or other co-defendants.

A. The Look Good Attorney

For some lawyers their self-centeredness is “advanced” enough they use the justice system to provide them a stage upon which they can show “their stuff.” They have little allegiance to fair play and are more concerned about how they appear to other lawyers in their office, their bosses or how they appear or sound in the local newspaper or television. To them their own career is paramount to anything else. They have little compassion for the citizen and human being they call “the defendant.” They consider themselves far above the “criminal milieu.” Perhaps they haven’t lived long enough to appreciate the maxim that “there but for the grace of God, go I.” Perhaps they never will. I think people whho sit on juries can see through this and, if given enough time, can see the lawyer who "postures" for who he or she really is. Placing more emphasis on looking good and not being real or genuine causes people on the jury to lose trust in the lawyer. If you watch the great trial masters, I think you will find that their “out of the courtroom” personality is not much different, if at all, from their courtroom personalities. Most of the very best trial lawyers are compassionate, credible and respect the opinions and viewpoints of other people. As trial lawyers, if we strive to maintain our credibility and don’t over react to the inappropriate behavior of opposing counsel, we become the person in the court room that the jury can trust and believe. I think some cases are lost by the government because the government’s attorney or opposing counsel has been overly zealous, obnoxious and offensive yet at the same time they themselves believe that they “look as a lawyer should” to other people in the courtroom. Although justice is what people on the jury truly want to see in most cases, I believe occasionally juries find against a party because they truly dislike that party’s attorney.

B. The Self-Righteous Attorney

Other lawyers and prosecutors are more concerned about always being right. After all they are the Government fighting for the good against criminals. I once had a prosecutor tell me during plea negotiations when I questioned whether I could simply rely on his word in a plea agreement that “I was just going to have to trust the United States of America” meaning I was just going to have to trust him. He considered himself the United States of America. (The last time I checked, both he and I were merely citizens of the United States). Some of these prosecutors believe all defendants and their attorneys are equally bad characters. They do not see shades of gray - only black and white. They will ignore critical evidence that defense counsel provides them that makes it clear the State’s case is not well-founded or lacks a good faith basis to proceed. Nothing will deter this prosecutor or opponent from their original position that your client is guilty as hell. I believe often times, these lawyers are fearful of being wrong - they can’t accept that they may have made a mistake for if they do their own self-esteem will be eroded. Ego gets in the way of the real truth. When the case becomes more about the lawyer than the facts, the truth can’t be told in a congruent fashion where the jury will believe the advocates story. Some of the best trial lawyers “make themselves invisible” in a sense - the facts and witnesses are paramount and are what the jury remembers, not the lawyers posturing, great oratory or dazzling “brilliance.” In my opinion, the verdict in O.J. Simpson’s case may have been different if the prosecutors’ concern for their clothes, hair styles and personal relationships hadn’t become a significant feature in the case.

C. The Need for Power Attorney

Then there are those lawyers who have a personal need for power. These people generally enjoy the power they have over your client and you. Bullying witnesses and defense lawyers gives them joy in and of itself. Being a prosecutor may give them a measure of self-esteem or self-worth. Sometimes for the first time in their lives it seems like people respect them. They had finally become somebody when they became prosecutors. People who seek power to make themselves feel good about who they are often feel very inadequate personally and professionally. The self-esteem they obtain as a result of their position isn’t healthy self-esteem. Perhaps that’s why when these prosecutors lose cases they sometimes take it so personally - they think that losing the case is their personal loss. They don’t consider the facts may have something to do with the outcome. As we defense attorneys know, there are certain facts in our cases that we cannot change and must accept. Sure there are things we can do to present the facts in a way most favorable for our client but we can’t change the facts. It is sometimes horribly difficult to emotionally deal with, but our losses in trials are no more our losses than a when a doctor loses a patient to cancer. The cancer was not the doctor’s cancer anymore than our client’s cases are not our cases. I try to remember, when I do my absolute best, I never lose. My cases are not about me. Once I begin viewing my cases as about my client and his or her situation, I become a better lawyer. I get stymied by fear when my clients’ cases become nothing more than extensions of my own ego.

People in Positions of Authority
Certainly prosecutors are in a “position of authority” as are many of us in some form or fashion. Before becoming a state public defender in Pensacola 21 years ago, I spent a few years as a Florida State Prosecutor. I can still remember how it felt to be the “proverbial good guy with the white hat” (my boss told me that), the sense of power having a badge gave me and how it felt when I began my new job right out of law school as a new prosecutor. For goodness sakes, I was able to make decisions about the proprieties of arrests by law enforcement officers who had many more years of experience than I did! I also remember the “cloak of credibility” jurors seemed to give me merely because it seemed I was on the “good guys team.” (Something else my old boss told me).
Like many people, being a prosecutor was my first job out of law school. I was fortunate that being a prosecutor was not the first job I ever had in my life. I was economically very poor during different parts of my life and financially struggled to get through college and law school. This still didn’t instill in me an understanding that the fact I had a law degree really meant very little when it came to trying jury trials. In fact, much of what I learned and who I had become because of the law school experience hindered my effectiveness in the courtroom. Albeit I had some “life experience” I still didn’t fully appreciate, at least to the extent I do now, the power I instantly had over people’s lives merely because of the job I held.

Does Being an Advocate Skew an Attorney’s Perception of the Facts?

A young person fresh out of law school who becomes a prosecutor is especially vulnerable to the personality changes that may accompany the power over people’s lives they are given merely by their positions as quasi law enforcement officers. Some of the people with the best temperaments to cope with such authority may not stay at the prosecutor’s office long and are merely there to gain some trial experience before they move on in their careers. However, there are prosecutors who appreciate the power they hold over citizens lives and really seek justice and the truth. They learn and accept that some police officers and/or complaining witnesses will exaggerate facts to justify making an arrest or having someone arrested. These prosecutors want to learn facts beyond those facts stated in a probable cause affidavit and know when to be merciful in their plea negotiations and will dismiss a case when they come to realize they cannot in good faith proceed. However, like all people, they see the truth through the prism of their own experiences. After being entrenched in the criminal justice system, a prosecutor’s perspective, like the rest of us, may become skewed. After being part of the criminal justice system and defending people for 24 years, I have come to accept that I may not always see my client’s cases entirely objectively myself. I want to believe my client’s story. However, I try to make a sincere effort to evaluate the case honestly; if my client tells me some story that sounds bogus, I tell him. If he or she demands to go forward with that bogus sounding story I tell him or her they need to find a different lawyer. Sure, everyone deserves a defense, but I believe a client deserves a lawyer who believes in their story as well. (Unfortunately, the courageous people at the Public Defender’s Offices can’t be so choosey).

In a Florida Criminal Court I recently resolved a case in Pensacola where my client had been charged under Florida Statute 825.102(3) with “neglecting or abusing an elderly person,” a third degree felony, by failing to timely pay her mother’s nursing home bill. Although it took considerable research, depositions, dealing with a very antagonistic and hostile nursing home administrator and having a hearing before the felony court judge, we were able to get the case dismissed by filing a “motion to dismiss” pursuant to Fla. R. Crim. P. 3.190(c)(4).

My client’s Mother had lived with her until her mental health had decompensated to where her Mother could no longer be left alone. My client made the tough decision to admit her mother to a nursing home. She had signed a civil contract with the nursing home to cover costs of her Mother’s care if her mother did not meet the necessary costs of her being housed in the home. After wrangling with the Social Security Administration my client was able to get her mother qualified to receive medicaid. The medicaid monies were being deposited directly into the Mother’s account on which my client had signature authority. Once medicaid had been approved, my client and her Mother became behind on paying the home. The nursing home called my client three times and sent her two letters requesting payment. Because of other genuine serious family issues she didn’t place a lot of priority on paying the home and waited almost five months to get a cashier's check to them. However, in the meanwhile, the nursing home administrator had called the Florida Department of Family Services who subsequently reported the case to law enforcement. DFS requested that my client be arrested for “Neglect And/or Abuse of the Elderly” for not paying the home. Law enforcement applied for and received a warrant. After my client had paid the $7,000 delinquent bill she was arrested and subsequently bonded out of jail and awaited trial.

The State’s theory was that because the Mother could have been involuntarily discharged it could reasonably be expected that my client’s actions (not paying the bill) could have resulted in psychological or physical injury to her Mother. What the State didn’t consider is the contract required the nursing home to provide my client with 30 days written notice of the involuntary discharge thus eliminating the possibility that her mother merely would have been wheeled to the curb of the sidewalk of the home. Furthermore, the prosecution’s theory was based on future conduct or events which had not taken place and was based purely on speculation and conjecture. Because of these reasons, the Court found in our favor and dismissed the case. I told the Court my client had learned to pay her bills on time regardless of what’s happening in her life. More importantly, our already overburdened Florida Criminal justice system was not bogged down with an unmeritorious criminal case. Our system is not fool proof by any means, and certain unfounded criminal cases get prosecuted across Florida and our country everyday. Our founding father’s eliminated debtor’s prison’s long ago.