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Former Prosecutors Who Go for the Money

The New York Observer has an article today about white collar prosecutors leaving the U.S. Attorney's Office in the Southern District of New York for the other side. The article, while telling and factual, draws the outline of the real picture, but being a news as opposed to an opinion piece, doesn't explain the dots. I will.

U.S. Attorneys and Assistant U.S. Attorneys leave the office and get picked up by the other side for one reason: the money. The white-shoe firms that hire them believe, justifiably so, they will be a huge draw to the increasing number of white collar defendants. But, it's a promise without substance. Once they leave the Department of Justice, they have no more clout than a lawyer who has never earned a dollar working there. Yet, that's not the real problem.

The real problem is most of these former high-level prosecutors can't make the mental shift. They don't have it in them. They thought they were doing G-d's work for the prosecution and feel more than a tad sleezy about working for the other side. You can read my rant about who is really doing G-d's work here and here where I take Law & Order chief Dick Wolf to task.

The truth is, most prosecutors can never be true defense lawyers. They don't have it in them to empathize with their clients. In the Observer article, former Deputy Attorney General James Comey, being heralded in the media and the blogosphere for objecting to Bush's warrantless NSA electronic surveillance program, gives a quote I couldn't even make up to illustrate the point:

When James Comey took office as the U.S. Attorney for the Southern District of New York in 2002, he described an earlier transition, from Assistant U.S. Attorney to corporate defense lawyer, as a “major adjustment.”

“You go from being paid to do the right thing every day, from having the freedom never to make an argument you don’t believe in, to being a defense attorney, where you are duty-bound to make the best argument you can,” he told the New York Law Journal. “I have a tremendous respect for people who do defense work, and it’s not lying, but in a private moment, sometimes, you say, ‘Geez, this is a bunch of baloney.’”

How pathetic. Is Comey someone you would want representing your brother or mother if they got in trouble? I wouldn't let him represent my third cousin in a D.U.I. case, let alone something serious.

It is irksome beyond description that these former prosecutors think they can change jobs and overnight become members of the defense bar. When Joe DiGenova and his wife Victoria Toensing left the Government as prosecutors to open their own "defense" firm, specializing as far as I can tell in defending public officials who get in trouble, they joined the National Association of Criminal Defense Lawyers. I remember when they came to a meeting we had in Miami, sometime in the 90's. All I heard from members was, "Isn't there some way we can stop them from joining?" and "It makes me want to gag that they are now members." The answer was no, they are as entitled as anyone else who is not an active prosecutor to become a member.

It's true that some former prosecutors see the light and get converted. All it takes is one case in which they believe the Government is egregiously trampling on their client's rights. But until they get that case, they are disdainful at heart, as if they are being forced to wash dirty laundry.

To be clear, I'm not talking about defense lawyers who were prosecutors only for a few years when they started out and who took the job as a way to get trial experience, not because they had a "G-d's work" mentality. Nor am I talking about career defense lawyers who take a break to become a high-level prosecutor for a short time because they are a friend to a high-level politician. There are many in these two groups who either are or become as true a defense lawyer as even the most stalwart public defender. But for the most part, those who begin and stay in a prosecutor's job long enough to rise high in the Department of Justice should never try to change sides. It will eat them up inside and they will never get it. All the more pity to them.

There are other options for these career prosecutors. One is to leave criminal law behind and become general counsel for a corporation. They can make their fortune there. The other is to become a federal judge. Look at Bush's nominations, from Michael Chertoff to Jay Bybee to William Haynes and others. Even Democrats are in awe of former prosecutors. They would salivate at the opportunity to recommend someone like James Comey for a judgeship. And Comey, as well as some of the successful prosecutors now leaving the U.S. Attorneys' Office in New York, would probably make fine judges. But defense attorneys when your life depends upon it? No, no and no.

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    Re: Former Prosecutors Who Go for the Money (none / 0) (#1)
    by roger on Wed Jan 04, 2006 at 05:26:46 AM EST
    This is why I have never joined NACDL

    Re: Former Prosecutors Who Go for the Money (none / 0) (#2)
    by Talkleft Visitor on Wed Jan 04, 2006 at 07:04:32 AM EST
    Conversely, I could never do "God's work"! Just couldn't make the mental shift it would take to be a career troll for the govt.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#3)
    by roger on Wed Jan 04, 2006 at 07:25:04 AM EST
    I have had these "true believers" try to solicit bribes, and one even went off his rocker and tried to shoot a contractor. I have had others attempt to release my witnesses from trial (!) amonst other misconduct. I have heard some "former" prosecutors express that they hope that their client gets convicted- hey, if you feel that way (we all do sometimes) don't take the case! "God's work", I think they got that one backwards! Funny though, they all put it in the yellow pages, "13 years former prosecutor", and people hire them.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#4)
    by Talkleft Visitor on Wed Jan 04, 2006 at 07:34:32 AM EST
    Joshua: [Lawyering is] A strange game. The only winning move is not to play. How about a nice game of chess?

    Re: Former Prosecutors Who Go for the Money (none / 0) (#5)
    by roxtar on Wed Jan 04, 2006 at 08:15:40 AM EST
    Defense lawyers can and often do make fine prosecutors. Frankly, criminal defense requires far more creativity than prosecuting, and the increased empathy comes with the territory. Give me a prosecutor (or a judge, for that matter) with a criminal defense background any day. Prosecutors going into defense work is a far chancier proposition. I find that they tend to be rigid to a degree that makes them ineffective. That, and they always seem to feel the need to rationalize what they are doing, as if defending a citizen from his government was an ethically questionable activity. I've observed that cops have far more empathy toward criminal defendants that do prosecuoirs with no defense experience. They're only half a lawyer.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#6)
    by Talkleft Visitor on Wed Jan 04, 2006 at 08:46:49 AM EST
    I have had these "true believers" try to solicit bribes
    Any of them ever investigated, arrested, or convicted for this? There was a Court of Common Pleas Judge in my area convicted in federal court for soliciting a bribe a few years ago...

    Re: Former Prosecutors Who Go for the Money (none / 0) (#7)
    by Talkleft Visitor on Wed Jan 04, 2006 at 09:03:51 AM EST
    TL: The truth is, most prosecutors can never be true defense lawyers. They don't have it in them to empathize with their clients. I have to believe that it would be an unusual human, prosecutors included, who does not "have it in them to empathize..." It may take some work, and a desire to change, but barring the occasional autistic prosecutor, most could probably be rehabilitated.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#8)
    by Slado on Wed Jan 04, 2006 at 09:36:06 AM EST
    I'm not a lawyer so I'll ask a stupid question. Doesn't it make sense that better lawyers would go into criminal defense then prosecution because it pays better? I mean why would someone go work for the district attourney with a carrer cap of say 150K when you can make oodles of money as a criminal defense lawyer? Sure some defense lawyers work for the state but only to pad their resumes to cash in later. If I was say, Patrick Fitzgerald, and had made a name, but not money, for myself why not try the profitable end defending some white collar criminal? Open question. Just asking.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#9)
    by Talkleft Visitor on Wed Jan 04, 2006 at 09:36:16 AM EST
    I had to laugh at the notion that prosecutors are "free" from ever having to make arguments they don't believe in. Every prosecutor I know believes that his or her job is to get convictions, not to do justice. They make bogus, bad-faith arguments every day in the single-minded pursuit of prosecutorial glory. They simply don't give a hang if it looks like the defendant they're relentlessly gunning for might actually be innocent.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#10)
    by Talkleft Visitor on Wed Jan 04, 2006 at 09:57:22 AM EST
    This blog entry, combined with the previous one about LAW & ORDER really made me happy. Because of a lucky accident I have come to retain the services of a firm whose bread-and-butter is criminal defense for all of my needs: mostly personal business, family stuff, tax, etc. During a particularly tense negotiation over a contract which would have committed me to working in a very dangerous part of the world, all alone, albeit for a princely sum of money and equity, my attorney finally said to me: "as you lawyer I cannot advise you to sign this contract -- under their terms you are stuck with them until you are burnt out, in prison or dead -- and if anything goes wrong you'll be criminally liable in the host country and the US and civilly liable to your 'partners.'" Took his advice as always and he was right. But more than that, a regular business lawyer would never have the sensitivity to think through the PERSONAL elements of the deal, he or she just would have advised me to jump at the free-roll. Someone I know who has needed criminal defense in the past says that's one of the things a good criminal lawyer does best -- think through the LIFE questions. Naturally, even though this firm is an equal opprtunity defender -- they have defended plenty of police officers -- they confirm the blog's view that it's LAW & ORDER time and not LA LAW time anymore. They grow weary of the losing and feel (a) in every case they have two opponents -- the prosecutor and the judge and (b) the US Attorneys have become worse and worse over the years: sadistic, tending to overcharge, unwilling to negotiate and seeming to want to extract the maximum pain from the accused and his or her family. For example, they caught a fraud and conspiracy case in which the spouse of one of the defendants was charged with a felony carrying a 5-year penalty. The crime? Using $1000 of the proceeds to buy garden supplies at Home Depot. My wife loves those cop shows, especially NYPD Blue, Law & Order, and CSI. I make her pause them and turn off the TV if she wants to have a conversation. I know, I know. What if I got mugged? Puh-leeze, I've been mugged at gunpoint and knifepoint over 5 times. I'll never switch.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#11)
    by ltgesq on Wed Jan 04, 2006 at 10:29:07 AM EST
    Go for the money? What money? I have been a criminal defense lawyer for ovr ten years now. I was a graduate at the criminal defense college. My record of victories when a public defender was for a year, i never lost a single case I took to trial. With all that, i it took me over five years to match the amount of money I made as a Union carpenter. I do this work because i love it. If i got paid three times as much to do other work it wouldn't be enough. If you take this work "for the money" it is exactly like marrying for money. You will be just as fine a spouse for money as you would be a Defense lawyer. Very,very few prosecutors know how to conduct an effective crossexamination since it is super rare that they ever get the chance while prosecuting

    Re: Former Prosecutors Who Go for the Money (none / 0) (#12)
    by roger on Wed Jan 04, 2006 at 12:47:12 PM EST
    Ltgesq, I do love how everyone thinks that we are rich!

    Re: Former Prosecutors Who Go for the Money (none / 0) (#13)
    by Dadler on Wed Jan 04, 2006 at 01:34:47 PM EST
    Roger, You're all Bruce Cutler, aren't you? Doesn't that seem to be the perception? And, yes, hilarious. As if EVERY defendent has deep pockets. Hell, they're lucky to have ANY pockets most of the time.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#14)
    by roger on Wed Jan 04, 2006 at 02:16:24 PM EST
    Dadler, Most people accused have very little money. Some of the drug dealers have some, but even many of them are broke and addicted.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#15)
    by learned hound on Wed Jan 04, 2006 at 02:39:42 PM EST
    Permit me to fulminate: most of the AUSAs I know are never going to be adequate criminal defense lawyers. But guess what? Their clients haven't got a clue about that. Their clients think they're "connected" and will be able to negotiate a great deal or even try a credible case. What a joke. If their clients had any sense, they'd be recruiting instead long time, seasoned, smart Federal Defender or Legal Aid lawyers who can really defend them. Is it any wonder that so many of these clients end up playing tennis at Lompoc or Allenwood Camp?

    Re: Former Prosecutors Who Go for the Money (none / 0) (#16)
    by Talkleft Visitor on Wed Jan 04, 2006 at 04:55:17 PM EST
    “You go from being paid to do the right thing every day, from having the freedom never to make an argument you don’t believe in, to being a defense attorney, where you are duty-bound to make the best argument you can,” he told the New York Law Journal.
    This is hillarious. Right you never let a cop testify when you know he is at best exaggerating and at worst out right lying, or a lying snitch, or sought a mandatory sentence when you new it would damage a young person for life. Here's the scary part what if prosecutors did believe every thing they said. Then they would all be dogmatic zealots and these type of people should never have that kind of power. Personally I'll take a prosecutor who is lying, to save face about his job, and would maybe do the right thing from time to time then a zealot. A self-righteous prosecutor is either full of s**t or a menace to society. B

    Re: Former Prosecutors Who Go for the Money (none / 0) (#17)
    by Sailor on Wed Jan 04, 2006 at 06:45:44 PM EST
    Learned Hound, I'm just gonna assume your fulminating is due to a mercurial attitude;-) And yes, Roger/Dadler, as soon as I see a PD able to afford the same suit as the AD I'll reconsider whether the just.us system is fair;-)

    Re: Former Prosecutors Who Go for the Money (none / 0) (#18)
    by Talkleft Visitor on Wed Jan 04, 2006 at 06:47:38 PM EST
    Wow, what gigantic generalizations. I like reading this site because I respect the rigor of the analysis and the (at least comparative) even-handedness. But this, frankly, is worthy of Bill O'Reilly in its baseless, blustering, sweeping condemnation of an entire group. I've made the change from fed to defense lawyer just fine, thanks. Most of the most prominent and respected white-collar defense attorneys in LA are ex-feds. So are a number who do distinctly non-white-collar defense (like me, now -- I do both). Many were "career" prosecutors -- that is, they worked for ten or fifteen years in the government and rose to significant supervisorial positions. They have different styles, but many are known as pitbulls. I'm not familiar with any with problems empathizing with clients in general (though who hasn't had a client or two who defies empathy). Really, this is a disappointing post.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#19)
    by Sailor on Wed Jan 04, 2006 at 07:09:03 PM EST
    Waaah, ex fed. So you and you ex fed buddies representing white collar crims make a lot of money on folks who can afford to pay your fee. Real criminal defense attorneys don't make so much. Their clients are poor, for the most part, and they go against a trillion dollar organization every day. Ooooh, aren't you brave to plead your rich clients to a former colleague.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#20)
    by Talkleft Visitor on Wed Jan 04, 2006 at 07:16:48 PM EST
    Actually, me and my ex fed buddies represent some people who can afford to pay our fees and some who can't. The former pay for our freedom to do the latter. Of course, that's just some of us. Some only take the high-ticket clients. That's kind of the way people are -- you know, defying sweeping generalizations. Is there a standard someplace that tells us what "real" defense lawyers are? Is it written down? Is that like the "real" Americans I hear about these days a lot? Is there a loyalty oath I should read up on someplace? And, just out of curiousity, are rich clients deserving of scorn -- and, by implication, a less vigorous defense -- because they are rich? Are rich people presumptively guilty, because they are rich or their alleged crimes white collar? Isn't that just sort of the flip-side of the sort of mentality that defense lawyers are supposed to decry? I mean, it just sounds like awfully sloppy thinking, like what we hear about people accused of other categories of crimes.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#21)
    by Talkleft Visitor on Wed Jan 04, 2006 at 07:41:24 PM EST
    Ex-Fed, you sound very, very defensive. You are also missing the point. I did not question the skills of ex-career prosecutors. Or argue that they shouldn't charge high fees or represent the wealthy. My post is about the mind-set of the career prosecutor who, as characterized in the Observer piece, changes sides for the money. White Collar work doesn't get your hands dirty. How do you feel about representing someone charged with sexual assault on a child or any brutal assault --or a drug kingpin who has an informant killed? How about a domestic or foreign terrorist who blows up a building and kills people? Could you put your heart and soul into it? Would whatever crime they are charged with not be an issue for you, because they are entitled to the best defense possible and to put the Government to its proof no matter what they are accused of? There is no loyalty test. But to career defenders, what we do is not a job. It's not even a profession. It's a calling. Maybe you're an exception. I hope so. But I think I'm pretty spot on with my post.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#22)
    by roger on Wed Jan 04, 2006 at 07:43:18 PM EST
    Ex, Go back to the third paragraph of the article, where it says "most". There are always exceptions. Some ex-persecutors can do the job, and others, like one we have locally, asked the jury to find her client guilty. Actually make that two local ex-persecutors.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#23)
    by Talkleft Visitor on Wed Jan 04, 2006 at 08:25:42 PM EST
    "Ex-Fed, you sound very, very defensive. You are also missing the point. I did not question the skills of ex-career prosecutors." If objecting to gross overgeneralizations that seem to be motivated by categorical animus makes me defensive, color me defensive. I found the few spare "mosts" to be fig-leafish given the strident nature of your claims. The supervisorial-level ex-AUSAs I know went on to do stuff like supervise LAPD and Sheriffs watchdog agencies, represent Wen Ho Lee pro bono, work as indigent defense panel attorneys, and work a balance of white collar and non-white-collar work. No "most" applies to them. "White Collar work doesn't get your hands dirty." The thing is, I don't have a lot of respect for the sort of chest-pounding "I'm a more real lawyer than you because I do case X." I don't like it in any of its permutations, from the "you don't do violent crime" to the "you do insurance defense" to the "eww! how can you be a criminal lawyer!" Different lawyers have different skillsets depending upon their inherent talent and background. For instance, some (not all) of the very best cross-examiners I have seen are Deputy Federal Public Defenders I used to go against. Year for year, that job probably gave them better cross-examination chops than being a fed gave me. Year for year, I probably wound up with better direct exam experience, particularly with difficult witnesses like experts. Similarly, I would never sit first chair in a death penalty case at this point in my career because I don't have the experience. I know excellent and qualified death penalty lawyers that I would not hesitate to give a DP case. But I wouldn't give them the representation of a witness, subject, or target pre-indictment in a complex investigation --- white collar or not. It's a different skillset. There are some PDs (and DAs) I know who would be better than me at picking up a case the night before trial and trying it with minimal preparation because circumstances demand it. I'm probably better than some of them at winning a case through motion practice or pretrial investigation. Do you think that promoting a hierarchy of defense attorneys by putative ideological purity promotes the interests of a vigorous defense bar? I'm not talking about the outliers -- the people who confess to judgment or fall asleep. After all, those come from all walks. But at what point does specialization justify people of good faith to rank defense lawyers on some sort of big-swinging-dick I'm-the-real-lawyer scale?

    Re: Former Prosecutors Who Go for the Money (none / 0) (#24)
    by Talkleft Visitor on Wed Jan 04, 2006 at 08:51:32 PM EST
    You are so off topic I am going to end this. Did you even read the Observer article? It's about white collar lawyers who admittedly switch sides for the money even though they believe that as a prosecutor, they are taking the side of truth, justice and the American way. They say they are changing sides because they can't put kids through college on salaries that cap out at $140k a year. A quote from the article: "Prosecutors at the U.S. Attorney’s office have different versions of the adage about selling out to a fancy law firm, but one version has it that they start looking around when they have a second child, or when their first hits school age. " Those are the ex-prosecutors I'm referring to when I say they will have a hard time making the mental shift to being a defense lawyer, and defendants are better off without them. From the article: "There’s a law-and-order mentality that’s hard to shake. Prosecutors are often idealistic, coursing with the belief that they are incorruptible, that their loyalty is to the truth, to seeing justice served. They can often be righteous: Because they pick their cases instead of their cases picking them, they believe through and through that they are right. They see the defense bar—where loyalty to the client is paramount—as relativistic to the point of unprincipled. It can make the transition rocky." One more quote, from one who changed sides: "Mr. Peikin argued that it’s easier to make the transition to defense work in the white-collar arena. “I’m not representing any terrorists, I can tell you that,” he said. “It’s seldom black-and-white; there are often degrees or shades of gray.” I'll bet the terrorists are glad he's not representing them.

    Re: Former Prosecutors Who Go for the Money (none / 0) (#25)
    by Talkleft Visitor on Thu Jan 05, 2006 at 09:48:46 AM EST
    Doesn't it make sense that better lawyers would go into criminal defense then prosecution because it pays better? If you lose a criminal case and your client has to do time, paying your fees will not only be difficult for him--it will probably be the least of his problems.