Look, we don’t see eye to eye.  I get that.  You have your view of the world; I have mine.  And our jobs require us to be key components in an adversarial system.

And even though it’s sometimes fun, or funny, to joke about it, “adversarial” doesn’t mean we’re enemies.

Two tennis players on opposite sides of a net are “adversarial” when it comes to the participating in the sport of tennis.  They hit the ball back and forth between themselves seeking to place that ball somewhere legally within the bounds of the court whence their opponent is least likely to be able to return it.  They try everything within the rules to win.

But they don’t throw things onto the court to trip up their opponent and they don’t “hide” the ball.  In fact, in tennis — where there are fair and impartial judges — hiding the ball would result in a lost point for the person hiding it.

Yes, I know.  I know.  We’re not on a tennis court.  You don’t have to worry about the judges on our courts penalizing you for hiding the ball.  But that doesn’t make it right.  Just because you can hide the ball without penalty doesn’t mean you should do so.  Our constitutional system aims at fairness and recognizes what so many of you in private conversations with me deny: the government you represent is very powerful and can easily run roughshod over accused persons, which can result in innocent people languishing in our jails and prisons.

So “adversarial” doesn’t mean “whatever it takes to win, however low, improper, or unethical it may be.”

“Adversarial” means:

[O]ne party with his witnesses striving to prove the facts essential to his case and the other party striving to disprove those facts or to establish an affirmative defense.  (“adversary.” Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (18 Feb. 2009).)

In particular, nothing about that requires you to hide discovery.  Hiding discovery is unfair.  Moreover, it’s unethical.  In some cases, it’s even illegal.  (But, yes, I know: there’s no one to charge you and your buddies on the bench won’t even blink.)

And if you do it because your office’s culture inculcates, praises, or otherwise encourages or requires that behavior, you might want to consider getting another job.  “I’m just following orders” hasn’t really worked since Nuremburg.  Again, no one is going to punish you — at least not in this life.  But stacking the deck, rather than simply presenting the facts and arguing your case, is wrong.

And if you think I’m just some fruitcake defense attorney who “doesn’t get it,” maybe you can listen to these guys instead:

  • American Bar Association: Center for Professional Responsibility: Model Rules of Professional Conduct — Advocate: Rule 3.8 Special Responsibilities Of A Prosecutor.
  • Amicus brief written by former prosecutors, judges and other public officials in a U.S. Supreme Court case where the prosecution hid discovery.

I searched in vain for correlative materials in California. That doesn’t mean they don’t exist. California has words on the books (e.g., Penal Code section 1054 et seq.) indicating prosecutors have to turn over discovery at least thirty days prior to trial, or as soon as it comes into their possession or constructive possession. Case law occasionally supports this same idea.

Your duties and my duties differ. While I will behave ethically, my duties are defined by law differently and require me to do certain things that you are forbidden from doing.

That you believe I’m doing certain things which may improve my position or damage yours does not justify you in behaving unethically, or breaking the law. The categorical imperative upon which our system of jurisprudence depends requires that you do what you wish others would do, not that you do only what you think (sometimes without more than a hunch) others are doing.

Finally, what do you say we do our respective jobs with the recognition that that’s what we’re doing. My job is to zealously defend my client — even if some prosecutors, former prosecutors and judges think I’m “too much of an advocate” for my client. Your job is to do justice.

And you can’t do justice by behaving unjustly.

26 comments

  1. Hey Rick, (fyi CNN has a spot called Hey Rick)
    The ADA on my case here Texas, could learn a lesson or two from this peice. He’s a “former” now but still drops in on blogs here and there. I can’t wait to see him rear his head so I can recommend it to him.

    Some-how, it’s legal here to take the ball and turn it into a .38 cal. Rohm and it’s ok to create two seperate State’s Exhibits docs. with three number twos. It’s just fine for them to be dated seven yrs. apart. They don’t even require them to be date / time stamped. These aren’t, nor is the Motion for Discovery and Inspection. The Order form isn’t even filled out, meaning not agreed or denied by the judge.

    Had it been properly taken care of, my attorney would have seen that a robbery vic. reported a .22 or .25 cal. revolver w/ 2 inch barrel was used not a .38 w/ 6 inch barrel. Then of course one would hope that he knew there was the police report showing no weapon possession charges. He would have noticed that the suspect had straight blk hair, no mustache vs. my wavy brown hair and mustache.

    What are you gonna do when your hired attorney teams up with the ADA to take cases right up to the point of lunch recess on the first day only to “tap out” by coercing an obvious innocent client into plea- bargaining.

    Anyway, the Texas Board of Pardons & Paroles condoned his / their behavior by denying me a full pardon based on innocence in 99 and again in 02. I’d trade a pardon in a heart beat to know where the hell Casey O’Brien obtained the .38 cal Rohm from & where it went to?
    Thanks for allowing me to share a night-mare re: a prosecutor, no discovery & a mystery gun.

    Blog on, my friend and we’ll follow.

  2. Hey Rick, (fyi CNN has a spot called Hey Rick)
    The ADA on my case here Texas, could learn a lesson or two from this peice. He’s a “former” now but still drops in on blogs here and there. I can’t wait to see him rear his head so I can recommend it to him.

    Some-how, it’s legal here to take the ball and turn it into a .38 cal. Rohm and it’s ok to create two seperate State’s Exhibits docs. with three number twos. It’s just fine for them to be dated seven yrs. apart. They don’t even require them to be date / time stamped. These aren’t, nor is the Motion for Discovery and Inspection. The Order form isn’t even filled out, meaning not agreed or denied by the judge.

    Had it been properly taken care of, my attorney would have seen that a robbery vic. reported a .22 or .25 cal. revolver w/ 2 inch barrel was used not a .38 w/ 6 inch barrel. Then of course one would hope that he knew there was the police report showing no weapon possession charges. He would have noticed that the suspect had straight blk hair, no mustache vs. my wavy brown hair and mustache.

    What are you gonna do when your hired attorney teams up with the ADA to take cases right up to the point of lunch recess on the first day only to “tap out” by coercing an obvious innocent client into plea- bargaining.

    Anyway, the Texas Board of Pardons & Paroles condoned his / their behavior by denying me a full pardon based on innocence in 99 and again in 02. I’d trade a pardon in a heart beat to know where the hell Casey O’Brien obtained the .38 cal Rohm from & where it went to?
    Thanks for allowing me to share a night-mare re: a prosecutor, no discovery & a mystery gun.

    Blog on, my friend and we’ll follow.

  3. Hey Rick, (fyi CNN has a spot called Hey Rick)
    The ADA on my case here Texas, could learn a lesson or two from this peice. He’s a “former” now but still drops in on blogs here and there. I can’t wait to see him rear his head so I can recommend it to him.

    Some-how, it’s legal here to take the ball and turn it into a .38 cal. Rohm and it’s ok to create two seperate State’s Exhibits docs. with three number twos. It’s just fine for them to be dated seven yrs. apart. They don’t even require them to be date / time stamped. These aren’t, nor is the Motion for Discovery and Inspection. The Order form isn’t even filled out, meaning not agreed or denied by the judge.

    Had it been properly taken care of, my attorney would have seen that a robbery vic. reported a .22 or .25 cal. revolver w/ 2 inch barrel was used not a .38 w/ 6 inch barrel. Then of course one would hope that he knew there was the police report showing no weapon possession charges. He would have noticed that the suspect had straight blk hair, no mustache vs. my wavy brown hair and mustache.

    What are you gonna do when your hired attorney teams up with the ADA to take cases right up to the point of lunch recess on the first day only to “tap out” by coercing an obvious innocent client into plea- bargaining.

    Anyway, the Texas Board of Pardons & Paroles condoned his / their behavior by denying me a full pardon based on innocence in 99 and again in 02. I’d trade a pardon in a heart beat to know where the hell Casey O’Brien obtained the .38 cal Rohm from & where it went to?
    Thanks for allowing me to share a night-mare re: a prosecutor, no discovery & a mystery gun.

    Blog on, my friend and we’ll follow.

  4. Hey Rick, (fyi CNN has a spot called Hey Rick)
    The ADA on my case here Texas, could learn a lesson or two from this peice. He’s a “former” now but still drops in on blogs here and there. I can’t wait to see him rear his head so I can recommend it to him.

    Some-how, it’s legal here to take the ball and turn it into a .38 cal. Rohm and it’s ok to create two seperate State’s Exhibits docs. with three number twos. It’s just fine for them to be dated seven yrs. apart. They don’t even require them to be date / time stamped. These aren’t, nor is the Motion for Discovery and Inspection. The Order form isn’t even filled out, meaning not agreed or denied by the judge.

    Had it been properly taken care of, my attorney would have seen that a robbery vic. reported a .22 or .25 cal. revolver w/ 2 inch barrel was used not a .38 w/ 6 inch barrel. Then of course one would hope that he knew there was the police report showing no weapon possession charges. He would have noticed that the suspect had straight blk hair, no mustache vs. my wavy brown hair and mustache.

    What are you gonna do when your hired attorney teams up with the ADA to take cases right up to the point of lunch recess on the first day only to “tap out” by coercing an obvious innocent client into plea- bargaining.

    Anyway, the Texas Board of Pardons & Paroles condoned his / their behavior by denying me a full pardon based on innocence in 99 and again in 02. I’d trade a pardon in a heart beat to know where the hell Casey O’Brien obtained the .38 cal Rohm from & where it went to?
    Thanks for allowing me to share a night-mare re: a prosecutor, no discovery & a mystery gun.

    Blog on, my friend and we’ll follow.

  5. I must say that you say it all to well I agree and I hope that the day will come when prosecutes take your advise. The nation is getting tired of these game at the price of our liberty and our rights.

  6. I must say that you say it all to well I agree and I hope that the day will come when prosecutes take your advise. The nation is getting tired of these game at the price of our liberty and our rights.

  7. I must say that you say it all to well I agree and I hope that the day will come when prosecutes take your advise. The nation is getting tired of these game at the price of our liberty and our rights.

  8. I must say that you say it all to well I agree and I hope that the day will come when prosecutes take your advise. The nation is getting tired of these game at the price of our liberty and our rights.

  9. Hi Rick, I totally agree with your position. Prosecuters have a duty to turn over discovery…all discovery in their possession. What the hell do they think they are doing? You can not refuse to turn it over… that would be unethical and unprofessional. I guess I am naive, and it pisses me off to think that people are getting away with these types of things…not to wonder what else?

  10. Hi Rick, I totally agree with your position. Prosecuters have a duty to turn over discovery…all discovery in their possession. What the hell do they think they are doing? You can not refuse to turn it over… that would be unethical and unprofessional. I guess I am naive, and it pisses me off to think that people are getting away with these types of things…not to wonder what else?

  11. Hi Rick, I totally agree with your position. Prosecuters have a duty to turn over discovery…all discovery in their possession. What the hell do they think they are doing? You can not refuse to turn it over… that would be unethical and unprofessional. I guess I am naive, and it pisses me off to think that people are getting away with these types of things…not to wonder what else?

  12. Hi Rick, I totally agree with your position. Prosecuters have a duty to turn over discovery…all discovery in their possession. What the hell do they think they are doing? You can not refuse to turn it over… that would be unethical and unprofessional. I guess I am naive, and it pisses me off to think that people are getting away with these types of things…not to wonder what else?

  13. Marshall, It’s not readily apparent that things have swung to the “right.” The conservative (normally derided as right) position is for the rule of law. The rule of law requires the state to comply with discovery as well as other rules, including, in most states, the rule to seek justice vice convictions. Prosecutors that flaunt these rules are not conservatives, no matter what political persuasion they claim or have had appended. The officer that illegally detains a citizen by the side of the road while waiting for the drug dog is no better than any other kidnapper. The prosecutor that fails to comply with the Brady disclosure requirements is no better than any other law breaker.

  14. Marshall, It’s not readily apparent that things have swung to the “right.” The conservative (normally derided as right) position is for the rule of law. The rule of law requires the state to comply with discovery as well as other rules, including, in most states, the rule to seek justice vice convictions. Prosecutors that flaunt these rules are not conservatives, no matter what political persuasion they claim or have had appended. The officer that illegally detains a citizen by the side of the road while waiting for the drug dog is no better than any other kidnapper. The prosecutor that fails to comply with the Brady disclosure requirements is no better than any other law breaker.

  15. Marshall, It’s not readily apparent that things have swung to the “right.” The conservative (normally derided as right) position is for the rule of law. The rule of law requires the state to comply with discovery as well as other rules, including, in most states, the rule to seek justice vice convictions. Prosecutors that flaunt these rules are not conservatives, no matter what political persuasion they claim or have had appended. The officer that illegally detains a citizen by the side of the road while waiting for the drug dog is no better than any other kidnapper. The prosecutor that fails to comply with the Brady disclosure requirements is no better than any other law breaker.

  16. Marshall, It’s not readily apparent that things have swung to the “right.” The conservative (normally derided as right) position is for the rule of law. The rule of law requires the state to comply with discovery as well as other rules, including, in most states, the rule to seek justice vice convictions. Prosecutors that flaunt these rules are not conservatives, no matter what political persuasion they claim or have had appended. The officer that illegally detains a citizen by the side of the road while waiting for the drug dog is no better than any other kidnapper. The prosecutor that fails to comply with the Brady disclosure requirements is no better than any other law breaker.

  17. You would be surprised how prevalent it is where Prosecutors just want to win and no longer care about what happens on appeal. It didn’t use to be that way. However , when we give almost complete power to Prosecutors, with little or no consequences for violations, well… Absolute power corrupts absolutely!
    Things have swung extremely far to the right in criminal court matters.

  18. You would be surprised how prevalent it is where Prosecutors just want to win and no longer care about what happens on appeal. It didn’t use to be that way. However , when we give almost complete power to Prosecutors, with little or no consequences for violations, well… Absolute power corrupts absolutely!
    Things have swung extremely far to the right in criminal court matters.

  19. Rick, I fear you are tilting at windmills. I agree that there is NO excuse to hide the ball regarding discovery, but our culture virtually ensures that there will be. The state too often sees their duty as to win cases. If the defendant weren’t guilty, then they wouldn’t have indicted him.

    If you do something that allows a defense attorney to get a defendant off, you have PREVENTED justice from being served. It’s not much further of a step to start hiding the ball. That attitude rubs off on officers and we see “spin,” then testilying and then out right lying.

    It’s a mess, and I want to run from it.

  20. Rick, I fear you are tilting at windmills. I agree that there is NO excuse to hide the ball regarding discovery, but our culture virtually ensures that there will be. The state too often sees their duty as to win cases. If the defendant weren’t guilty, then they wouldn’t have indicted him.

    If you do something that allows a defense attorney to get a defendant off, you have PREVENTED justice from being served. It’s not much further of a step to start hiding the ball. That attitude rubs off on officers and we see “spin,” then testilying and then out right lying.

    It’s a mess, and I want to run from it.

  21. Rick, I fear you are tilting at windmills. I agree that there is NO excuse to hide the ball regarding discovery, but our culture virtually ensures that there will be. The state too often sees their duty as to win cases. If the defendant weren’t guilty, then they wouldn’t have indicted him.

    If you do something that allows a defense attorney to get a defendant off, you have PREVENTED justice from being served. It’s not much further of a step to start hiding the ball. That attitude rubs off on officers and we see “spin,” then testilying and then out right lying.

    It’s a mess, and I want to run from it.

  22. Thanks Rick. As a civil attorney (and former Assistant Attorney General representing the Virginia Corrections Dept.), I agree that the best working relationships are adversarial in the courtroom and not so much outside of it. This is even more required in the criminal context when someone may go to jail.

  23. Thanks Rick. As a civil attorney (and former Assistant Attorney General representing the Virginia Corrections Dept.), I agree that the best working relationships are adversarial in the courtroom and not so much outside of it. This is even more required in the criminal context when someone may go to jail.

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