If You Want to Be a Defense Attorney, be a Prosecutor

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Naomi Tovar.

As of earlier this week, I was one of the few people in law school that had never watched Making a Murderer. I did not even know what it was about. Then last night, I decided to watch the first episode. I thought it was finally time to watch the show, considering that I had recently decided the criminal law field is where I want to grow professionally.

Those decisions (to pursue criminal law and to watch the documentary) were easy. The more difficult decision I have to face, however, is whether I should be a prosecutor or a defense attorney. At first blush, the answer is simple: defense. A defense attorney protects the rights of those who, according the founding law of our country, are innocent until proven guilty. Many times, defense attorneys represent the poor, the marginalized, and the disenfranchised of our society. I came to law school to do exactly that.

Then I binged watched the first six episodes of Making a Murderer and my thoughts changed. All of Steven Avery’s defense attorneys were amazing. They argued for the right to a fair trial, the presumption of innocence, and the burden that the State should carry. Their passion was clear in every argument to the court, every cross examination, and throughout their investigation of the evidence. Of course, the way the prosecution is portrayed in the documentary may be slightly skewed. Still, Steven Avery was wrongly charged, convicted, and incarcerated, and then charged with a felony for a second time.

Even in my own experiences thus far, I’ve seen how defense attorneys sometimes have to deal with unfair, nonsensical charges. How they have to raise issues that should never have existed in the first place, including a wrongful search, seizure, charge, and even fighting for exculpatory evidence that is rightfully theirs. But perhaps if these defense attorneys had chosen to be prosecutors, the rights of defendants, who more often than not are the most vulnerable in our society, would be more protected than they appear to be today.

This idea has been explored by Adam Foss. Adam is a prosecutor who has received numerous awards and recognitions for his trailblazing approach to prosecution work. His TED talk has spread rapidly and has been translated into over 23 languages. Adam has even been asked to train prosecutors in entire DA offices, including the Manhattan District Attorney’s Office. His vision of criminal law is definitely worth listening to.

Considering all of this, I cannot help but wonder if life would have been different for Steven Avery if his defense attorneys had chosen to be prosecutors. Their passion for protecting the rights and privileges granted to us by the United States Constitution would undoubtedly translate into their work as prosecutors. They would have had the power to charge only those crimes that they believed there was enough evidence for. Arguably, their investigation of the cases would have been more thorough, and they certainly would have kept the interests and constitutional rights of the defendant in mind throughout the entire process.

The more I think about my passion for defense work, the more I consider prosecution work. Of course, big cases such as Steven Avery’s case are rare. And of course, victims have rights and interests that must be protected as well – prosecutors are responsible for the safety of entire communities. But a prosecutor’s main role is to bring justice when injustice has occurred, and that includes injustice to defendants. That part of the role is too often overlooked. Being a prosecutor would give me the power to affect injustice at every level, for everyone, and in every situation. That’s why I came to law school.


This Post Has 3 Comments

  1. Grace Gall

    I think you have made some really good points. I will say, for myself, having been an intern in a DA’s office a number of times now I think that the role of the prosecutor often does not get the best reputation. This is probably because prosecutors come into contact with members of the community at some of the hardest points in individuals’ lives: either when they are a victim of a crime or when their liberty is at stake as a defendant. I think it is important for prosecutors to be mindful of this but I know in my experience I have not met a prosecutor who has “enjoyed” putting away individuals. Sure, they are proud to represent the victims and the community in criminal matters and they certainly are proud when they succeed in a case. I have often heard from members of the public or even members of the defense bar who say “prosecutors like sending people to jail” or that it is “easier for you to send them to jail.” Nothing is further from the truth.

    Having been in class with you Naomi, when Adam Foss came and spoke to our class (really people should watch his TED talk!) I like that you brought up what Adam talked about. It is certainly important for prosecutors to be aware of the great discretion they have in not only dealing with criminal matters during the trial process, but they are reasonable for whether or not a charge is ever brought. I think it was a great opportunity for us in the Community Prosecution class to hear from Adam because he is a great example of how prosecutors can work on becoming more self aware and learn about issues like trauma and race.

    I think whichever side of the aisle you chose you will be off to a great start because you are clearly aware of these important issues! Great piece!

  2. Kenneth Madsen

    I want to thank Naomi Tovar for addressing this topic and Lisa Mazzie for bringing about the introduction of Adam Foss, a prosecutor of the caliber of this nation’s second president, when John Adams defended the “redcoats” who shot and killed members of a mob at the Boston Massacre.

    I am interested in the idea that a truly good prosecutor should be capable of being the defense’s best attorney. If not, the prosecutor doesn’t know the case well enough.

    This interests me because as a member of the Church of Jesus Christ of Latter-day Saints, I often have to deal with the very things which Naomi mentioned: unfair, nonsensical charges, issues which should never have existed in the first place, including fighting for exculpatory evidence from those who either don’t believe religion is important or believe my faith is a false religion.

    If those prosecuting their case against my faith were prepared to argue for the defense of my faith, only then would they be sufficiently prepared.

    I would argue that China’s alleged holocaust of the sixty or seventy million Falun Gang members and the state-sponsored torture and live stealing of organs for profit is an example of morality unbridled by religion. The same was true for Germany’s final solution of the Jews. Also religion gets the rap for causing war while the true culprit is really religious bigotry.

    Jesus Christ compared the Father with the unjust judge. We should likewise compare ourselves thus, and be more like Adam Foss when we must judge others.

    Anyway, thank you for your insight in these important matters.

  3. kathryn benfield

    I have been a defense attorney for over 35 years and am now running for district attorney in the county I have lived my entire life. I cried, yes, I cried, hearing this incredibly true to the bone talk by Adam Foss. His words echo exactly my sentiment with the current state of the criminal justice system. I tell my clients I have to “humanize” them to the prosecution – they are not simply a name on an Indictment/Information/CCH…..and so on. If only we could all practice what we preach and understand that the VAST majority of individuals charged with criminal behavior are anything but “criminal.” It is NOT “those people,” (I hear that way too often). Change IS necessary and needed. Services, reformation, opportunities that would otherwise not be within the grasp of many of those I serve must and should be provided to them. This talk completely resonated to and within me. Thank you, Mr. Foss, as you have completely made my day and have provided me with optimism that my choice to run for district attorney IS the correct course of action to, hopefully, effectuate change to an aging system which does not acknowledge, oft times, the good in people and afford the opportunity to invest in them. Your dedication and your words of power have been a breathe of fresh aire for me and I most kindly say, thank you.

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