Saturday, December 1, 2012


One of the ironies of being a public defender is that the public defender is often the last person to stand trial in a serious case. The process of putting the public defender on trial goes something like this: Stage 1: The defendant stands trial and gets convicted. Stage 2: The defendant receives a whopping sentence. Stage 3: The defendant’s conviction gets affirmed on appeal. Stage 4: The defendant files a post-conviction motion claiming ineffective assistance of counsel. Stage 5: The prosecutor takes on the role of defense counsel for, you guessed it, the public defender. [Memo to public defenders: Be kind to prosecutors—one may someday serve as your defense attorney].

Another irony of this process is that the attorney complaining about the “deficient” performance of public defender often has far less talent that the lawyer whose ability is being criticized. It was just such a situation which gave rise to a rather amusing incident during the evidentiary hearing on a post-conviction motion attacking the competency of a highly skilled assistant public defender. The defense attorney had conducted a rather spotty direct examination and tendered the witness for cross-examination without bringing out the most important aspect of the witness’s potential testimony. The exchange went something like this:

BY DEFENSE COUNSEL: No further questions, your honor.
BY THE COURT: Your witness, Mr. Prosecutor.
BY THE PROSECUTOR: No questions.
BY THE COURT: May the witness be excused?
BY DEFENSE COUNSEL: No, sir. I have a few more questions.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described on direct examination?
BY THE PROSECUTOR: Objection, your honor, beyond the scope of the cross-examination.
BY THE COURT: There was no cross-examination.
BY THE PROSECUTOR: That’s exactly why the question is beyond the scope of the cross examination.
After a moment’s reflection, the judge got the point of the joke. He smiled and said:
BY THE COURT: Sustained.

The prosecutor, feeling quite smug, leaned back in his chair and waited to see if defense counsel could find the way to extricate himself from the procedural booby trap into which he had blundered. A long silence ensued as defense counsel analyzed his problem. Then he saw the way.

BY DEFENSE COUNSEL: No further questions of Timothy Tattler at this time, your honor.
BY THE COURT: You may step down, Mr. Tattler. Call your next witness.
BY DEFENSE COUNSEL: At this time, your honor, the defense calls Timothy Tattler.
The witness, who had not quite made it to the door of the court room, turned back around and resumed the witness stand.
Q. You are Timothy Tattler, the witness who just testified in this cause?
A. Yes, sir.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described during your previous testimony?

The hearing then continued without incident. It was a rather petty joke, but the prosecutor took great pleasure in it. He could vividly remember the day when, as a rookie advocate, he had been the victim of that same joke played by a seasoned attorney. Perhaps someday this defense attorney would have the opportunity to play the joke on another young lawyer.

NOTE: The prosecutor successfully defended the honor of the maligned assistant public defender.