Last  week, Mark Bennett wrote a post about talking to jurors after a guilty verdict.  Jamison Koehler followed up with a post on perspectives on losing at trial.  In his post, Jamison discusses the differences, generally, between the defense and prosecution regarding post-verdict post-mortems.  That post was inspired by prosecutor/blogger D.A. Confidential who lists reasons why he doesn’t think too horribly hard about the could’ve, should’ve, would’ve’s when he loses at trial. (Whew, now that everyone has gotten their links, let’s move on)  I didn’t find any of the reasons he lists surprising for a prosecutor, but I don’t really buy them either.  If he loses, I think he probably reflects on it for longer than the time it takes him to get back to his office. The prosecution is not supposed to lose (unless it’s Baltimore City).  And, if he doesn’t think about it for more than four minutes, if he thinks it was a case he should have lost anyway, why did he try it in the first place? 

With that said, Jamison makes a couple of statements in his post that really stood out to me.  First, he intimates that there are some criminal defense lawyers who, after a conviction, probably don’t do a post-game wrap-up of where things went wrong or how they could have done better.  I shudder to think of that lawyer representing someone, of standing next to a living, breathing human being in the well of the courtroom.  This is the practice of law, and each time we move – whether it’s forward, backward or sideways, we are learning something.  If we are not able to sit down and reflect on what could have gone better after we have just heard the words “guilty” come out of a judge or jury’s mouth, we should call it a day and go home and never set foot in a courtroom again. 

Second, the post states that the ‘verdict tends to contaminate the assessment’ of how well we did at trial.  Meaning, if we lose, we suddenly don’t think we did so hot even if we felt like we killed every cross, made every objection perfectly and held our ground at every turn.  Here’s the thing, we really attempt to avoid trying cases we know we are going to lose, we try to get good deals, mitigate, etc.  But some cases just have to be tried.  And, if you are going to try them you have to convince yourself that if you choose the right tactic, you could win.  So you go through and prepare and convince yourself you could win, even when the deck is stacked, even when every other human being on earth looks at you like you are a complete moron and doesn’t understand why you even show your face in public, you do it.  So, when you lose, even if you were meant to lose, you take it very hard.  As Mark Bennett said, the verdict IS the assessment of how well you did at trial.  If you pull it out when it should have been a loser, it was because of you.  Likewise, if your client is looking at several years behind bars, it’s also because of you.

I am a girl.  I get to go back to my office and cry about it.  In fact, after my first loss that’s exactly what I did.  My first trial as a defense attorney was an attempted murder/kidnapping/weapons possession.  My client was a gentleman if there ever was one – soft spoken and kind (at least to me).  I worked my ass off, went to the scene at the same hour as the crime was alleged to have occurred, videotaped the area, went door to door in Arbor Hill asking folks questions.  I thought we had a really great case.  My client testified and was convicted of the gun charge (which cost him more time than the attempt murder would have).  The jury told me that they were about to walk my client until he testified, and then they realized he was probably guilty of all of it, but could only get him on the gun.

My heart sank.  This was my fault.  I let him testify.  I counseled him, I prepped him.  I gave him all of the advice I could think to give.  I told him the pros and cons.  Yes, it was his choice, but could I have prevented it if I had lobbied harder for him not to testify?  Could I have prepped him better for cross?  I spoke to Terry at length about this case.  I thought I had done my due diligence.  I was wrong.

I think about this case even now, almost a decade later.  It’s the never-ending autopsy.  I can tell myself I did everything I could, that there was no way to know how that was going to turn out, but it matters very little.  And yes, I cried. 

And I got back up, and I went out and tried another case.  And another.  And I wrote appeals, and drafted motions and reviewed and reflected on every win and every loss.  I hope I continue to do so, I hope I never think that the verdict doesn’t matter, as long as I do a “good” job.  I hope I never get ‘too busy to engage in too many post-mortems” and forget that I’m not just a cog in the wheel, that I represent fallible and fragile human beings.

 Mr. Confidential summed it up best himself in a comment on his post:

The problem you have, Jamison, is that when you lose there is an individual who suffers a negative impact. A conviction, maybe prison time. That must hit close to home when you’ve been working with that person a lot prior to trial. For us, we have victims sometimes and they can be distraught when we lose. But they get to go home and kick the dog, lose themselves in a book, have a strong martini. Your guys don’t. So I can see how that would be hard for you all.

 It is hard, and well it should be.  When it’s not.  Let someone else take over.