SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense lawyer and DUI lawyer Jonathan Katz. We are here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_00 0:17

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DUI defense lawyer in Fairfax, Virginia. As always, up to now, this is our episode number seven. We're joined by our podcast master, Abigail Sweigart. Hello, Abby. Hello there, folks. What are we discussing today?

SPEAKER_01 0:36

This is a good one. How to deal with difficult prosecutors, judges, police officers that you might encounter in your court proceedings.

SPEAKER_00 0:45

You mean to tell me that they're not all lovely to deal with and never uh and never a challenge? Shocker, right? Okay. So uh I often lump in uh challenging uh prosecutors separately from uh judges because uh and uh well uh lumping in prosecutors and police. Uh all three of them have their own agenda. Police, prosecutors, and judges. Police, they want a conviction, uh, and then they want to get back on the road or or get to sleep if they've had a midnight shift. Of course, they shouldn't want a conviction if they're not sure if the person uh committed the crime, but if the cop is there on the trial date and hasn't asked the prosecutor yet to dismiss the case, that means the cop ordinarily wants a conviction. The uh prosecutor uh tends to want a conviction. The prosecutor's oath is to seek justice and not just convictions, but there again, if the case is there on the trial date, unless the prosecutor has determined uh beforehand uh that they don't want a conviction, or uh not until the trial date realizes maybe this is not a case that should get a conviction. The prosecutor wants a conviction. Uh or else some sort of uh some sort of resolution that gets something to the benefit of the prosecutor andor uh the alleged victim if there's an alleged victim in the case. Usually you don't have alleged victims, for instance, for drug cases. Uh the judge, there are three types of judges. Uh they they run in a continuum. You have the judge who just wants to follow his or her oath. You have the judge who wants to chase dockets and make sure that uh the court dockets are not getting over full. Now that may or may not fill within fit within the oath. Uh then you have judges who are prosecutors in robes. Uh all judges will deny that. But if you look closely enough at the behavior of at least some judges, and I'm not going to say that it's uh in Virginia, but I've seen it, and uh I've practiced in jurisdictions outside Virginia as well, so I'm not naming names, but I've seen it happen. So if it's not something that's happening constantly, it's happening uh sometimes, and even sometimes is too often. And uh an example of this is I might make an objection at trial. Uh the judge calls up to us, calls us up to the bench, and the judge asks to hear from the uh the prosecutor first, even though it's my objection, and then when I'm about to respond, by that time the prosecutor has exhausted the judge so much that the judge just tells me my objection is denied. What do you think about all this, Abby? What what specifically do you think the listeners might want to know about?

SPEAKER_01 3:39

Well, I think it's good to know what it can look like with them being difficult, and how can a defense attorney deal with difficult prosecutors and judge in the courtroom and outside of the courtroom?

SPEAKER_00 3:52

So one of the most important things for you to do when you're asking questions of your potential uh lawyer, your potential criminal defense or DUI lawyer is do you acknowledge that there are some difficult police and prosecutors there and difficult judges? And how do you deal with that? How do you deal with that to uh not uh weaken the defendant's case? How do you do that to not get bent out of shape yourself? And how do you deal with that to even turn that around? Uh for instance, the more that your lawyer is seen as a voice of reason, reliability, credibility, and honesty, that alone can turn a judge around who's barking at your lawyer first. Well, we don't have a lot of barking in uh Virginia compared to other jurisdictions because there's this whole uh focus on civility. But let's say uh how does your lawyer deal with a judge who seems to unreasonably uh deny uh almost every request of your lawyer? He can turn it around. He can turn around a judge uh warning your lawyer, you know, you're making too many objections, you're slowing us down. Uh when I had that happen the first time I was in front of a judge in federal court for DWI trial, I said to the judge, Well, you know, this is probably my hundredth DWI trial. By now I've done a lot more than that. Um and in fact, if the prosecutor would just um follow the rules better, we will get out of here soon. And sure enough, we did. And the judge let me try my case. Uh now, as far as dealing with difficult prosecutors, uh some prosecutors, intentionally or unintentionally, will speak so loud in the hallway of the courthouse or the courtroom before the judge comes in that uh the uh defendant hears. Well, lawyers, did you know this, Abby? Lawyers are not allowed to talk to uh represented opposing parties generally without uh the opposing lawyers. Uh the opposing party's lawyers okay.

SPEAKER_01 5:54

Yeah, I knew that, but not everyone does, and they don't know that that's not right.

SPEAKER_00 5:58

So I tell my clients in advance, if you see me talking to the prosecutor, just walk away. Don't give that prosecutor a chance to start talking to us. You know, here in Fairfax, we've got a lot of conference rooms in the courthouse, maybe not as many as I'd wish, but more than in some other courthouses. I've had it happen sometimes where a prosecutor will just open the door to a conference room where I'm talking to my client and start discussing the case with me. And even if it's about scheduling, what I do is I walk right up to the prosecutor. I said, let's take it outside. Well, not that type of take it outside, although I'm sure that some criminal defense lawyers would like to do that with certain prosecutors. I'm not allowed to say that's okay. But nonetheless, I say, let's take this out into the hallway. And when we're in the hallway, I say, look, I'm with my client. I don't want my client hearing you talk about the case. Now, prosecutors can get around that with the rules. For instance, a prosecutor can try to grandstand about the case when the case is in front of a judge, and then uh the prosecutor is able to get some subtext going to the uh the defendant if they want to try doing that, and if the defendant will let that happen inside. Another way a prosecutor can try to get to the defendant is to send a nasty gram by email or anything else by email to the defense lawyer, and then the defense lawyer has a choice of forwarding that wholesale to the client or saying to the client, Look, I got a nasty email from the prosecutor, do you want me to tell you what's in there? Cops, um cops have a lot of power. Prosecutors do too, but cops especially, they have the power of arrest, they have got the badge, they got the handcuffs, and one thing's thing that a lot of cops just detest is not feeling powerful. So if they don't feel that they can intimidate your lawyer, they might try to intimidate you. It can go as easily as they see you in the hallway and say, So hi, you're gonna go to trial in this case? Now, you know, I tell my clients, you do not engage the cops in conversation. You can say hello to them, that's it. And if they say anything to you, let me know what they've told you. Have I talked to Abigail about my likening? Uh my going to the courthouse like being on a playground and also about martial arts?

SPEAKER_01 8:11

Just a little bit.

SPEAKER_00 8:13

All right. The courthouse is my playground. And some people might say, well, gee, if there's so many shenanigans going on by cops sometimes or many times by some or more prosecutors, and uh and uh if you're having judges acting too unfairly seemingly, how can a criminal defense lawyer enjoy what he's doing? Well, I know this is what it's about, and this is my playground because I have a lot of experience throughout my life fighting, whether it's fist fighting, whether it's verbal fighting, and I love it when I win, and I uh and I love it all the more when I win against somebody who's just all uh uh also self-assured and and and uh and arrogant about it. Did I ever tell you about that uh prosecutor who we brought this up before by the prosecutor who who wanted to talk to me before we had a DWI trial uh because he wouldn't um he he wouldn't negotiate it down to reckless driving and he started trying to lecture me that I was wasting his time by going to trial. Have we brought this up on a previous podcast?

SPEAKER_01 9:18

I think a little bit, or not on a previous podcast, no, just here in the office.

SPEAKER_00 9:22

So, you know, I just smiled and I said, Well, I tell you how we can save your time, just give us the reckless driving offer that we uh made. And he said, I'm not gonna do that. And of course, you know how I ended up um teaching him a lesson.

SPEAKER_01 9:37

Yes, with things maybe not said on the podcast. We won the trial. We won the trial.

SPEAKER_00 9:44

So uh, and then about um martial arts is uh before I started doing uh martial arts myself, first doing Korean karate when I was in college, Taekwondo, and then followed by the Tai Chi Chuan martial art that I've been doing coming on almost 30 years now, there was this great uh TV series uh involving martial arts called Kung Fu. And in the um in the pilot program, Master Khan says to his uh uh his student Kwai Chen Kane, he said, observe the ways of nature. And this is the way I really believe in uh treating the uh courthouse as a playground and and in fighting for my clients with a smile on my face and still powerfully. He said, uh observe the ways of nature, avoid before you hurt, sorry, avoid before you check, check before you hurt, hurt before you maim, maim before you kill. Now, of course, uh lawyers are not allowed to uh use any physical violence, but we can use the proverbial approach here. Um yes, it's okay for your lawyer to smile with the prosecutor and uh police officer when they are not uh trespassing on your rights. It's okay for your lawyer to smile uh to the judge, uh, even when the judge is doing something wrong. For instance, let's say the judge is barking at me and saying, that's a crazy argument, and I can just respond with a smile, say, I'm just trying to persuade you, judge, and here's why. And didn't I did we cover it before the time I turned around a judge by smiling? It was a marijuana possession case when marijuana was still unlawful to possess in Virginia, and the cop testified, well, I stopped the car uh because um it was speeding, and as I was stopping the car, I saw the driver make a back uh uh a throwback motion with his hand as if he was throwing something into the back uh the back seat. So I shine my flashlight on the floorboard of the back seat, and sure enough, I saw a speck of something. So I opened the door and I picked it up and I found out it was marijuana. So I unsuccessfully argued to the judge. I said there was no probable cause to uh pull that out of the car and look at it. And the judge uh declined that argument. And in my closing argument, I said to the judge, Well, I would have had a lot more to close on here if Your Honor had suppressed the search of the alleged marijuana. And when I was almost in mid-sentence, the judge said to me, He said, Wait, one second, Mr. Katz. You know, I've thought this over a little more. You're right. Uh I'm gonna suppress that marijuana. I said to myself, this is good. And he found my client not guilty. And with no with almost not missing a beat, the j what was followed, what what follows was improper. Uh the judge then uh looked at my client, he said, Don't think that you just got out of this so easily. I know you have a drug problem. What drug problem? What marijuana problem? Okay, let's say my client had a little bit of marijuana, enough for a joint or a half a joint, and he threw it behind him. What problem is that? So uh that is my general approach, and I just think it's so important that you know that your potential and actual criminal defense lawyer is going to not hand over your power to the judge prosecutor or cop is not gonna hand over his or her power to the judge, prosecutor, or cop. You know, no matter how much how nastily someone acts, or uh in in a situation of a judge, no matter how unfairly someone acts, we have a choice about how we're going to respond to that, about whether we're gonna be bent out of shape about that or not. And even if you as a defendant feel bent out of shape, you don't want your lawyer to feel bent out of shape about it. Abby, what are the thoughts do you have, or what else do you think the audience might want to know about all this?

SPEAKER_01 13:40

This might go in hand in hand with this conversation, but what if a potential client is asking their potential lawyer, well, how close are you to the prosecutor or their judge? Are you guys friends? Is that something that they can use to determine their potential lawyer of the relationship between the defense attorney and the judge and prosecutors?

SPEAKER_00 14:03

Well, around here it's such a small community that a lot of lawyers and judges are friends. Uh judges were usually practicing lawyers before they became judges, and they'll continue being friends uh with lawyers that they were already friends with once they uh become judges. Uh with me, it's more just a matter of happenstance. I only have no one judge, one or two judges who I was pretty friendly with before they became judges, but this is in another jurisdiction far away uh where I would rarely appear in front of them. But if I did appear in front of them, I would just tell my client, I'd say, look, I've been friendly with this judge, but that's not going to get in the way of this at all because you come first. And if that um if if that uh makes worse my relationship with this judge, that's just fine. And the the same thing goes with prosecutors. Just by uh by happenstance, I'm just not close friends with any prosecutor, at least not in the jurisdictions I deal with. I have a very close friend who's an appellate prosecutor in Florida, but I'm never gonna have a case with him. So uh you want to make sure that of any friendship that your lawyer has with a judge or prosecutor or police officer is not going to get in the way of his or her opportunity and ability to defend you well. Now, your lawyer may tell you uh that I'm good friends with this judge, I'm good friends with this prosecutor, so this will put me in better stead with you. How? How? The prosecutor and judge, they still have the same oath. I suppose uh if the prosecutor is acting properly, if the judge is acting properly, about the only benefit that your lawyer being friends with the judge or prosecutor might do is to uh open their ears uh to your lawyer and and uh and have them uh feel that your lawyers more credible, but friendship isn't needed for that, just familiarity. Just like I'm familiar, uh just like so many prosecutors, cops, and judges are familiar with me.

SPEAKER_01 16:00

And is it okay to ask a potential lawyer how they do get deal with you know the relationships with the judges and prosecutors, especially when it gets difficult?

SPEAKER_00 16:11

Absolutely. Absolutely. And so what I tell my clients about how I deal with it is at my best, and I've been at my best, is I do daily Tai Chi Chuan, because that martial art is an internal martial art that deals with the strength of calmness. And uh I said to the greatest living Tai Chi master at the time, I asked him, his name was Ben Lo. He died a few years ago, born around 1927, and when I was at one of his um uh weekend uh training sessions, said, Master Lo, now if someone comes at you to punch you straight in the chest, and Tai Chi Chuan involves such slow movements and gentle movements, uh, how on earth are you going to be able to defend yourself against that? Have I told you about this one, Abby?

SPEAKER_01 16:58

I don't think I've heard this one.

SPEAKER_00 17:00

So Ben, instead of telling me to slug him, says, Joe, come slug me in the chest. And Joe goes to slug him in the chest. And what Ben does is very quickly but uh smoothly, takes both of his uh forearms together uh right against Joe's uh forearm itself, and then he twists his body, and he didn't do it hard enough to uh break Joe's arm, but he could have done it then. And uh Joe said to me at the break, he said, Next time you have a question for the master, make sure you're the guinea pig. So what this really comes down to is make sure that your lawyer will um will stay, stay in the boxing ring, and hold his own and your own. I guess another uh another analogy I could think of on that one is uh what did the godfather say to his son Michael Corleone?

SPEAKER_01 17:55

Oh my gosh. Testing my movie knowledge, and I don't know.

SPEAKER_00 17:59

Keep your friends close and your enemies closer. I never run away from judges, no matter how uh good or not good they're acting, nor prosecutors, nor cops, and I think it drives some of them crazy.

SPEAKER_01 18:13

So you want your lawyer to not give up their power and be able to deal with difficult, and maybe not even if they're acting that difficult, judges, prosecutors, whoever's in front of them for you.

SPEAKER_00 18:24

Right, and help to pro and help to empower you. For instance, you know, gosh forbid you get found guilty and are sentenced, unless there's an agreed sentence, the judge is gonna want to hear from you. You want to be as powerfully calm and persuasive as possible. And when you know that your lawyer is standing behind you there, and that if the judge barks at you during sentencing that the judge is that your lawyer is gonna stand up for you, that's all the more important. But what's the most important thing for us to do uh when we're defending our clients?

SPEAKER_01 18:51

You gotta beat the prosecution, that's number one.

SPEAKER_00 18:54

And where can people reach us, Abigail, if they have any questions?

SPEAKER_01 18:57

Well, they can give us a our office a call at 703 383 1100. You can send us an email at info at beatheprosecution.com. Our texting number is 571-406-7268. Or just for general information, you can visit our website at Katzjustice.com or K-A-T-Z.

SPEAKER_00 19:22

Abigail, thanks again for being with us, and thanks everyone for listening. This is John Katz, a criminal defense lawyer and DWI defense lawyer in Fairfax, Virginia.

SPEAKER_01 19:33

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beatheprosecution.com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.