Yes, Freddie, it is your client, but no, it’s not personal. There is a difference between being our client and being our client’s advocate. We don’t want to be our client. Our clients, many times, are not good decision makers, but we should strive to be. Part of being able to make good decisions and advise someone about good decisions is that we can’t be too emotionally involved. Your darling Allison understands, though, that this is a thin line to toe—developing a good relationship with a client and not getting too swept up in the feelings involved—but it exists and comes with time.
Sometimes it’s easy to get insulted when someone is being unreasonable. That’s especially true when we’ve bonded with our clients and we don’t want bad things to happen to them. But the way we handle that, dear friend, is not to walk away fuming, it’s to try to make the prosecutor understand why we don’t want bad things to happen to our client.
When you walk into a first appearance, the prosecutor has probably seen the following things about your client: a mugshot, a criminal history sheet, and an offense report. “Seen” is probably too strong a word. “Skimmed” or “gleaned” may be better. Your job is to depict a person who is more than the sum of those things. There are different ways to do this that work better or worse with different prosecutors.
Sometimes it’s enough to say, “Oh, gosh. I see your offer is six months in jail. My client has three kids and is the only one working. That would just totally devastate them. Is there anything we can do with this?” If the answer is no, you can keep pushing. Sometimes it’s best to walk away for a little while before you do that, though. Reset the case, get some mitigation together. (Proof of employment? A letter from her church saying that she’s there every Sunday and leads the choir and please don’t send her to jail? A picture of her taking care of her sick mom?) Sometimes it’s not just about playing to heartstrings, it’s about helping a low-level prosecutor pad the file with enough mitigation that he or she can justify a really sweet deal to a supervisor.
I get it. We don’t come from a culture where you haggle. It feels cheap and weird to negotiate with someone’s freedom. But here we are in the midst of this peculiar situation, and our client suffers for our awkwardness and bad attitude.
Also, I know you may be surprised to hear this, but prosecutors are people too. I thought about this the other day as I sat in a courtroom next to a pretty, young prosecutor pleasantly chatting, both of us waiting to approach the judge. Suddenly, a defense attorney popped up in front of her, breathing his fetid, sour breath into her face and demanding that she dismiss a case while staring directly at her chest and grimacing. Uh, yuck. Double yuck. Brglfffyyyyyick (that’s the sound of me involuntarily shuddering and saying “yick”).
She was polite but firm, and he had zero grounds for dismissal other than the fact that I would have probably signed the stinking nolle right then just to get his nasty, leering ass away from me forever. As he lumbered away, knuckles delicately grazing the carpet, I said something to the effect of, “That was super gross. I apologize on behalf of all people ever that you had to deal with that.” Without batting an eyelash, she said, “Oh, he’s not that bad compared to some.”
Dear Freddie, at age 19, your darling Allison was a diner waitress for the late-night crowd. Picture her in a cute maid uniform, significantly more svelte and bubbly, bringing drunkards endless patty melts and strawberry cheesecakes at 3:00 a.m. Your darling Allison knows what it’s like to be grossed out by the mouth-breathers and butt-slappers. This was that bad. Worse, even, it felt like. This was not a late-night diner. This was a courtroom.
Yes, I disagree with the incarceral system in general. No, I don’t think that I have much in common with most people who devote their lives to putting my clients in that system. But oh my gosh, let’s keep our manners and a civil tongue (and eyeballs) in our heads. Prosecutors have a lot of discretion, and I can’t imagine that even the most regimented and professional among them aren’t somewhat more or less inclined to negotiate more or less favorably with attorneys who treat them like people and not like pork products.
When you go meet with prosecutors, give them a chance to be reasonable. Smile. Don’t walk in with a sword (or worse . . .) in your hand, ready to hack or poke anything that gets in your way. Listen to them talk. People feel the need to fill in silence with justification. Let them fill in the silence. Listen to their reasons for not wanting to give you a good deal. Then calmly, surely, make as many of those reasons go away as you can. It’s just like playing Jenga. Almost.