Former Federal Prosecutors Discuss Defense Strategies

Former Federal Prosecutors Discuss Defense Strategies

As a defense attorney going up against federal prosecutors, the stakes are high and the odds seem stacked against you. But former federal prosecutors say effective defense strategies do exist. I spoke with several former federal prosecutors about tactics they saw work for the defense during their time as prosecutors. Here’s what they had to say:

Building Rapport with Prosecutors

Several former prosecutors I interviewed emphasized the importance of building rapport, where possible, with the prosecuting attorneys. As John Dean, former White House counsel during Watergate scandal, put it:

“I learned early on that despite adversarial roles, treating prosecutors with respect and civility can reap benefits later.”

Of course, this isn’t always easy or even possible. But when feasible, being courteous and demonstrating reasonableness can help.

As former federal prosecutor Reid Weingarten explained:

“I was more inclined to listen and consider reasonable arguments from defense attorneys who showed respect, rather than those who came out guns blazing.”

Humanizing Your Client

In a federal case, the government has endless resources to paint defendants as ruthless criminals deserving punishment. Effective defense attorneys recognize this and work to humanize clients early on.

Laurie Levenson, former federal prosecutor and Loyola law professor, told me:

“Juries connect more with flawed but redeemable people than cold blooded criminals. Wise defense attorneys introduce background and complexity of clients early in trial narratives.”

This sentiment was echoed by other former prosecutors I interviewed. The more one-dimensional and evil the portrayal of a defendant, the easier it is for juries to convict. Savvy defense lawyers counter this by bringing forward mitigating evidence and emphasizing redeeming qualities early and often.

Focusing on Weaknesses in Government’s Case

Former federal prosecutors stressed that government cases often have flaws that skilled defense lawyers can exploit. As Sol Wisenberg, former deputy independent counsel in the Whitewater investigation, noted:

“The government has the burden of proof and must establish guilt beyond reasonable doubt. Smart defense attorneys hammer on evidentiary weak spots and inconsistencies, which are common even in strong cases.”

This means meticulously reviewing government evidence and witness testimony to identify every hole, contradiction, assumption, bias, or question mark. Raising these issues through cross examination and arguments can plant seeds of doubt in jurors’ minds.

As former federal prosecutor Francey Hakes explained:

“I had cases with cooperating witnesses fall apart because of defense attorneys exposing lies or self-serving motives on cross.”

Judiciously Seeking Dismissal or Plea Deal

Of course, not every case should go to trial. Former federal prosecutors said defense attorneys who judiciously seek dismissal or plea deals serve clients well.

According to Patrick Fitzgerald, former U.S. Attorney who prosecuted governors Rod Blagojevich and George Ryan:

“Overzealous defense lawyers sometimes hurt clients by seeking dismissal on weak grounds or refusing reasonable plea offers, only to lose at trial and face harsher sentences.”

But federal cases can also be dismissed due to constitutional violations or other issues. And plea agreements allow defendants to avoid the risk of trial while potentially securing lesser charges or sentences.

The key is knowing when to hold ‘em and when to fold ‘em, as Kenny Rogers might say. There are times to fight and times to negotiate. Experienced federal defense attorneys recognize this delicate balance.

In the end, defending a federal case is an uphill battle. But as former federal prosecutors explained, effective strategies do exist. Attorneys who build rapport with prosecutors, humanize clients, attack evidentiary weaknesses, and judiciously leverage dismissal and plea options give clients the best chance in an admittedly difficult situation.