For the Defense - Vol. 9, Issue 4 - 54

Character reference letters can play a large role in humanizing
your client to the prosecutor and to the court. These letters provide
insight into how others view your client, highlighting their qualities,
contributions, and personal relationships. In this case, the focus
is on your client as a person and an individual, not merely as a
criminal defendant in a sea of criminal defendants. They serve as
a reminder that your client's identity is not defined by their worst
decision, and that they have the potential to positively contribute
to their community. Ultimately, strong character references can
help demonstrate that your client is not a threat to society, which
may influence the prosecutor's approach to the case and, in some
instances, lead to more favorable outcomes.
To effectively advocate for your client, it is essential to gather
tangible evidence that illustrates who they are and what they have
accomplished in life. This can include employment verification,
medical records, educational certificates, and any other relevant
documentation that reflects their personal history and achievements.
The type of evidence you collect should be tailored to your client's
age, background, and accomplishments.
Be sure to provide documentation to back up the claim. Without
concrete proof, such claims will carry little weight with prosecutors
(and judges). It also may negatively impact your credibility with
prosecutors (or judges). To avoid this, always ensure that you have
verifiable records to substantiate any assertions you make on behalf
of your client.
Don't go to war over every case, your reputation will
thank you.
The fact of the matter is, not every case is winnable. Some cases
simply should never go to trial. In those circumstances, your ability to
negotiate effectively for your client is paramount. In every case, you
should have a candid conversation with your client about the role
that you play in the case, the decisions that you will be making, and
the decisions that they must make. In cases where the evidence is
clear-cut-for instance, because the client made an admission, there
is irrefutable video evidence showing the client as the perpetrator,
or some other bad fact exists that you can't get around or excuse
away-your role as defense counsel really hinges on your ability
to negotiate the best possible outcome, because the alternative of
going to trial is not in their best interest.
If you are the type of lawyer who wants to fight every battle simply
for the sake of fighting the battle, you are going to exhaust your
efforts and likely exhaust the goodwill of the prosecutor. One of
the best things you can do in developing a good rapport with the
prosecutor is to be realistic. By no means does this alleviate you of
your obligation to be a zealous advocate. It simply means you must
be a different kind of advocate. Relying on your creativity and your
ability to convince the prosecution to consider alternatives other than
punishment will be of help to your client.
Develop a positive rapport with the prosecutor.
Developing a positive rapport with the prosecutor is essential in
the criminal defense process. A basic principle we all learned at a
young age-treat others as you wish to be treated-should guide
your approach during negotiations. It's important to recognize that
prosecutors have challenging jobs, too. Approaching the prosecutor
with respect and courtesy, even when it's not reciprocated, will reflect
on your professionalism and integrity as an advocate. This is ultimately
for the benefit of your client, and how you conduct yourself can have
a significant impact on the outcome of their case.
54 For The Defense l Vol. 9, Issue 4
Achieving this requires a delicate balance. Be firm and direct in your
negotiations but avoid coming across as hostile or inconsiderate. Some
prosecutors may take things personally, so it's important to push for
your client's interests without pushing too hard. Keep in mind that we
all bring unique perspectives, backgrounds, and experiences to the
table, and understanding this will help to maintain a more effective
working relationship.
In many cases, particularly for public defenders, you will repeatedly
work with the same prosecutor on multiple cases. Building and
maintaining a respectful rapport is crucial, as these interactions will
undoubtedly affect future negotiations for other clients.
So much of an effective negotiation stems from your rapport
with the Commonwealth and your interactions with them. When
possible, try to develop personal relationships with the prosecutors
in your county.
Certainly, this is far easier in smaller counties; but
a professional relationship based on mutual respect says a lot about
your integrity and who you are as an advocate.
Is it ever okay to go above the assigned prosecutor
when you are negotiating for your client?
It depends. Many attorneys feel that going over the head of the
assigned prosecutor is a recipe for disaster, you may feel like you're
being disrespectful or suggesting that the assigned prosecutor
doesn't understand the law or the facts, is being too difficult to work
with, or both. The answer depends on your overall comfortability and
your relationship with the particular office, as well as the supervisor.
Recognize the risk and reward and evaluate whether your request
is reasonable.
In smaller counties where the number of attorneys
is fewer, it might be easier to develop more long standing, collegial
relationships whereas in larger counties, this may prove more difficult
with higher rates of turnover and the sheer number of prosecutors
in the office.
There are times when it is necessary to inform the supervisor,
particularly where you might believe the junior prosecutor is in error
or doing something unethical. In these situations, your approach
is key. An effective strategy may be to first communicate with the
assigned prosecutor before attempting to go over their head any
issues or concerns that have arisen. Always be sure to frame your
request in a respectful and non-confrontational manner.
For example, you could write:
I hope that after reviewing the mitigation materials
provided, you will consider a meeting to further discuss
the outcome of this case. If agreeable, could we please
include [Supervisor's Name] in our meeting? I wanted
to check with you first to ensure I do not overstep. I am
flexible and will work around your schedule, although I
would kindly request your soonest availability.
This approach demonstrates professionalism, shows respect for the
prosecutor's role, and maintains a collaborative tone, increasing the
likelihood of a productive dialogue.
Conclusion.
In conclusion, mastering the art of plea negotiation requires
a blend of knowledge, strategy, and interpersonal skills that can
only be developed through experience and persistence. Defense
attorneys wield significant power when they leverage their expertise,
understanding of their client's case, and the strengths of their rapport
For the Defense - Vol. 9, Issue 4

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