Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: Battle For The Boston “Bully Pulpit” – Prosecutors Vs. Defense Attorneys

After reading the latest supplement to the Newsweek stories on bullying, this time including only one sentence of mine, I looked to the day’s news.

As usual, I was given another example of adults demonstrating the kind of civility which would make most kids blush. This time, the topic was funding in the criminal justice system. It was the angry, yet smugly calm, prosecutors vs. The shrill and angry defense attorneys.

The scene was a staid State House press conference inside what the law enforcement side referred to as “hallowed halls”. Just the place to argue about money. Of course, the place was so hallowed because of a new nation being birthed because of governmental tyranny.

Kind of ironic that it was the government seeking more funding to battle the court appointed lawyers for the indigent citizen who was blessing the hall.

In the criminal justice system, reality tends to mock itself
It all began when representatives from the Committee for Public Counsel Services (“CPCS”) turned the tables on the prosecutors. Instead of law enforcement barging into a collection of soon-to-be-defendants, it was the defense crashing the prosecution’s party. Said “party” was a press conference wherein nine of the state’s 11 district attorneys were gathered in the Nurses Hall with the goal of convincing lawmakers and the public that too much of the state criminal justice money lands in the pockets of defense lawyers and CPCS.

For some odd reason, the mean defense attorneys felt they had the right to show up at said press conference and ask questions. Apparently, the upstarts were claiming that the prosecutors’ representations were really not accurate and demanded that they back up their claims.

The natural result? As Boston.com put it, a “donnybrook”.

Bristol District Attorney C. Samuel Sutter took the podium and argued that “simple math” shows that Massachusetts spends too much to provide indigent defendants with lawyers when compared to other New England states.

“That”, he opined, ” cannot be justified”.

Au contraire!

You see, the budget for court appointed attorneys is not comparable to the true budget for the prosecution.

I know something about this because I was a bar advocate for the indigent for many years. I have also been a prosecutor in a time and place more law enforcement challenged than Beantown will ever see.

Bar advocates are attorneys who are in their own practice and, usually, depend mostly, if not solely, on the comparatively low hourly rage they are allowed. Once they put in their bills, of course, which can only be done during certain sacred times in the life of a case, they then must justify what is often a nickel and diming procedure by CPCS.

Why the nickel and diming? Because despite the misleading picture the salaried prosectors and politicians wish to portray, there is simply not enough money. Certainly, for any defense attorney to work as a bar advocate, it is often either a case of an inexperienced attorney or someone who as yet to “make it”, whether because of a lack of talent or drive. Of course, thank G-d, there are also some “true believers” sprinkled in there who, despite flirting with bouncing checks and bill collectors, believe in the cause so much, they continue to swallow their egos and fight the good fight.

For very little money and plenty of hassle.

Out of the same budget which pays these defense attorneys, of course, money must also be put aside for investigators and expert witnesses, should the court allow the lawyers’ begging for funds, Believe it or not, the need for such services are so that the defense can have an independent review of the evidence…after it has been grabbed, analyzed and sometimes mutilated by the prosecution.

“Isn’t it the same financial issue for the prosecution?”

Nope. You see, first of all, they respond first to the scene. Further, they have other independent budgets which pay for their experts, investigators and “support” to garner favor from potential witnesses (that is, when pure threats of the power of the government is not enough). These are called, police, medical examiner’s office, probation departments, crime labs, etc.

Of course, together with that are the intangibles. It is the government which has the power to make deals with witnesses, show up at their homes, check criminal records at a moment’s notice and all the other niceties which, not surprisingly, often makes extra expenditure of funds unnecessary!

You would be surprised at how inexpensive the threat of prosecution from the government can be…for the government.

Somehow, an attorney who is supporting a law office, malpractice insurance, health insurance, support staff, etc., is supposed to be equal in the playing field armed with an investigator and expert witnesses with the funds the court will allow who also have those same expenses.

These expenses are not part of the prosecutors” wages. It is all taken care of.

Of course, there is even more support that the government gets which they appear to be reluctant to talk about. I am referring to federal grants and other little surprises for example, monies from cash and other assets are seized from defendants…or other funding defendants regularly pay for in terms of fines and fees that are a part of their sentenced.

Usually, the government’s response to this unequal footing is to smile and tell the defense, “Trust us. We wouldn’t falsify or be misleading. We represent the people, after all”.

Right.

This, from the people who, by law, are allowed to blatently lie to witnesses and suspects in order to complete their investigation into what actually amounts to the proving of their own hypothesis.

“But, Sam, isn’t that the way it should be? I mean….they are the good guys, for crying out loud.

Nobody is always the “good guys” and nobody is infallible. Frankly, oversight is what keeps most such “good guys” honest and ethical.

I must confess another bias. I do not consider deciding the guilt of some poor sole who did not immediately see the police as his buddy and then gathering the evidence and preparing a prosecution that will ruin that man’s life solely on the conclusion originally reached.

Particularly when the assumption of guilt is based on, “Well, if they were really innocent, they would have come to us first!”

This is why leads that could be valuable evidence are tossed aside and never even revealed to the defense. Such evidence simply did not fit into the government’s theory and so was discarded as unreliable.

As for the scenario I just described, anything explained by the man who did not go to the police first to give his side of the event at issue is, of course, unreliable from the onset.

The truth is that there is no parity between what the defense can do and what the government can do. That the prosecutors have the testicular fortitude to cry foul because those dastardly overseers of how they put their cases together in an attempt to protect the poor from a prosecution which is often motivated by far more than the interests of justice should not really be shocking. They are, after all, politicians.

I was a prosecutor in Brooklyn, New York in the 1980’s. Prosecutors here do not know what it is like to be in an atmosphere where, suddenly, the drug crisis has exploded. Murders were routinely comitted over drugs or even a pair of sneakers. The entire environment is against you because the general populace sees you as the personification of racist “pigs” and a police department does not trust you because it feels your boss is too interested in prosecuting them and not enough interested in what they consider justice.

It was the golden era for folks like Rev. Al Sharpton, “Days Of Outrage” and hate crimes.

And, somehow, we were able to do our jobs without crying “Unfair!” to the media.

That word “unfair” is awfully familiar, though. I hear it often from my clients when they realize the realities of the criminal justice system.

But, heck, what do I know after only a quarter century in both sides of the trenches?

You are welcome to find out what I know by checking out my bio, or, if you have a matter to discuss, calling me for a free initial consultation at 617-492-3000.

Meanwhile, have a great, safe and law-abiding weekend!

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2010/10/the_states_11_d.html?fb_ref=blogent&fb_source=home_oneline

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