Government Ambushes Defendant

There was an article about the initial appearance of the famous baseball player, Roger Clemons, before a federal judge on charges of lying and obstructing justice. First of all it certainly shows just how seriously Americans take perjury. Lying is the kiss of death for a defendant trying to gain favor with U.S. prosecutors and investigators.

What struck me was the article’s description of the famous pitcher yukking it up with his four lawyers in the courthouse cafeteria. Now that’s a guy who gets it, I thought. He has four lawyers fighting against the richest most powerful government in the world, and if you want to win your case, seriously want to win, that is how to do it.

Even in ordinary run of the mill cases, the U.S. government starts with a team of investigators, which is eventually joined by a prosecutor and then a second or even third prosecutor by the time the case gets to trial. Subpoenas are served, witnesses are interviewed and reports are filed. This is all done by the government team working in shifts across the country or even internationally. In all cases, even the smallest ones, there are at least two prosecutors at trial in federal court, one case agent who sits with the prosecutor and usually an intern-law student willing to do whatever the team asks. Additionally, more agents are in the background providing back up as the case proceeds.

In contrast, defendants with millions of dollars in resources hire one lawyer to defend themselves against this onslaught. It is not entirely the defendants’ fault. They are new to the ways of the Federal (or State) criminal process. Defense attorneys are just as much at fault, quoting fees that take care of themselves without thinking of the support they need to mount a solid defense. This means defense attorneys will have to do all the work themselves or hire other attorneys on the cheap because they did not initially make provisions for a support staff. Compounding the problem is the fact that defense lawyers operate in a highly competitive market, dealing with defendants who never met a fee they did not want to negotiate. Whatever the reasons, the net result is one defense attorney against a small army of government officials.

In my mind there should be at least two defense lawyers at trial representing the defendant. One serves as the performer, acting on instinct and talent, while the other judges the performance and studies the jury’s reaction to what is being said, noting what works and what does not. The two then deliberate with each other in between “rounds” (witnesses).

Now, of course, you do not need a battery of lawyers and investigators if you are not going to trial, and not all defendants can afford a battery of lawyers and investigators, but if you want to beat the U.S. government, you better come well armed.

David Zapp

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