By Criminal Defense Lawyer Jeremy Rosenthal
COVID has altered the way we negotiate cases.
Communication isn’t the same. At times, the new modes of connection are difficult to overcome. Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.
Prosecutors are funny creatures. I believe they are driven by decency, a quest for justice and a sense of duty. I know because I was one and I really enjoyed it and found it fulfilling.
But understanding them and what makes them tick is far more complicated. Many are younger and being a lawyer for the State is their first job in our profession. Some of the more experienced ones have still never ventured outside the DA’s office. Their world is like none-other. I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth. The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.
I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine. When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.
Knowing what motivates prosecutors is absolutely crucial in criminal defense. And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.
What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further. It shouldn’t come as a surprise it’s a far more difficult sale.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is a Texas Super Lawyer as designated by Thomson Reuters.