Vol. 5, No. 5, Pg. 36. Defense Counsel's Conduct: How to Quell Suspicion in the Prosecutor's Heart.

• Author: By Craig A. Gillen

South Carolina Lawyer

1994.

Vol. 5, No. 5, Pg. 36.

Defense Counsel's Conduct: How to Quell Suspicion in the Prosecutor's Heart

36Defense Counsel's Conduct: How to Quell Suspicion in the Prosecutor's HeartBy Craig A. Gillen"Suspicion, born in my heart, Suspicion, keeps us apart... "

Many defense lawyers (hereinafter referred to as counsel) believe that all federal prosecutors are born with suspicious hearts and view any activity or conduct by counsel as suspicious activity. This is not always the case, however. Although the prosecutor understands the fundamentally different roles and objectives of the prosecutor and counsel, a relationship of mutual respect and trust can and should exist between the two and may assist both in serving their clients well.

The First Meeting

Regardless of when counsel becomes involved in the investigative process, he or she should personally meet with the prosecutor as early as possible. This permits counsel and the prosecutor to get to know each other and to establish from the beginning what ground rules, if any, will govern their future dealings (e.g., how subsequent meetings and agreements will be memorialized and by whom).

Both the prosecutor and counsel carry with them their reputations for past conduct with opposing counsel. As a general rule, each is aware of the other's background and reputation. Counsel should be aware that the prosecutor has an understanding of counsel's background and reputation for dealing with prosecutors in pre-indictment situations. Remarkably (and unfortunately), some counsel spend a great deal of time in that first meeting recounting their earlier courtroom victories and professional accomplishments in an apparent attempt to impress--or in some cases to intimidate--the generally younger and less experienced prosecutor.

The prosecutor will generally view this self-aggrandizement as an attempt to gain an "upper hand" in later dealings with the prosecution. The very best counsel does not seek an "upper hand" over the prosecutor but rather attempts to establish a relationship of mutual respect and trust, understanding that counsel and the prosecutor have different roles and serve different clients.

"The very best counsel does not seek an 'upper hand' over the prosecutor but rather attempts to establish a relationship of mutual respect and trust, understanding that counsel and the prosecutor have different roles and serve different clients."

Implicit in the relationship is an understanding that counsel is an advocate, attempting to cause the prosecutor to reach decisions in his or her investigation that are in the best interest of the client. Both counsel and the prosecutor understand this dynamic and, as much as counsel endeavors to create an atmosphere with the prosecutor of "working through the problem," the role of counsel as an advocate is always in the mind of the prosecutor. The way counsel treats the prosecutor is of great importance to the dynamic of the relationship.

Counsel's Demeanor

Obviously, counsel should not be rude and insulting if counsel hopes to persuade the prosecutor to exercise discretion in favor of counsel's client. (Remarkably, this is not obvious to some nationally known counsel.)

Conversely, counsel should not spend a great deal of time lauding the prosecutor during the negotiations period. Praise, if it is due, is more appropriate at the end of counsel's dealings with the prosecution. Before that, even well- intentioned praise may be viewed as a false attempt to alter the prosecutor's decisions in favor of the client. The prosecutor does not want counsel to be fawning and obsequious. The goal should be to establish a relationship of mutual respect and trust.

Contacts

As the contacts between counsel and the prosecutor become more frequent, both will realize the level of communication they are comfortable with in their dealings. The level of communication is the level of formality necessary to document their respective positions and agreements. For example, a great deal of

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* "Suspicion," written by "Doc" Pomus and Mort Shuman, first recorded by Terry Stafford, 1964.

38communication is done by telephone. If, following a telephone conversation, counsel writes the prosecutor a confirming letter that does not accurately reflect the conversation, counsel's credibility is substantially diminished. Both parties know what they said and agreed to during the conversation, and it is imperative that these agreements be reduced to writing correctly.

There are some counsel with whom prosecutors will only communicate on paper or in the presence of a court reporter. It is simply too much trouble to undo counsel's inaccurate recollections of informal communications with the prosecutor.

"Throughout dealings with the prosecutor, counsel must constantly assess what he or she believes to be the prosecutor's intentions....