Wednesday, July 14, 2010

Do we autopsy our losses?

As every prosecutor and defense lawyer knows, an autopsy is rather essential to proving a murder case. But do we inspect with the same diligence a trial that is DOA? Or, as one of my regular readers asked:

After losing a trial, do you do any sort of retrospective look at things to see what went wrong? Do you wonder if you had negotiated a little better at the pleading stage, maybe you could have gotten him behind bars for a couple years?

There is, perhaps inevitably, a degree of informal "What if?"-ing that goes on. As we wander down the hall away from the courtroom we throw out possible reasons for the loss. The case was too old, the main witness performed horribly, There was always going to be some doubt, turns out to be reasonable doubt. . . .

But I think the question was about a more formal autopsy, and the answer is "no." And here are the main reasons:

1. A very thorough analysis of the case has been done before we get to trial. Especially in my court, where the Judge takes an intelligent interest in every single case, the plea bargain options have been explored to the max. If it's a high-profile case, if the victims are very involved, or if someone was badly hurt, then we've run it past our bosses, too, for their input. So, by the time a case is put before a jury, the plea issues have been scrubbed up and down, so there's not much point in revisiting them after a loss.

2. Trials are always unpredictable. That's because we cannot control numerous aspects of them, try as we might. For example, we "pick" a jury but have no real idea who the leader will be, how they will see the witnesses and evidence. Likewise, we pick the witnesses we think will best represent the case, but we can't control their attitudes and mannerisms on the stand. A witness who says the right stuff but comes across as angry, unwilling to answer the defense lawyer's questions, or simply disinterested will hurt our case. And while we prep them to "just tell the truth" the rest is up to them.

3. We are busy. Maybe this is a lame excuse, a way to avoid important self-analysis but I have about 150 cases to work on. That means I am busy every day, and if I'm in trial for a week by the time I get back to my office I am neck deep in files, emails, and phone calls. I simply don't have time to do an in-depth, post-trial autopsy. Most of the time I go home early to rest, then come in early the next day and get back to it.

4. Sometimes the gap between our expectations and those of the defendant are just too huge. I have written of a theft case where the defendant was willing to accept a Class C misdemeanor for his tenth felony theft. Almost regardless of my witnesses (who were awesome) and regardless of what the jury panel looks like, those cases have to be tried, and so previous post-game analysis will not affect how we try them.

Now, make no mistake: lessons can be and are learned. That's the reason I talk to jurors after (almost) every trial. I want to know what worked and what didn't, whether they saw the case the way I did, and if not, why not. I listen to the Judge and to the other court staff, too, because very often they have insight worth hearing.

But I truly believe that every case we try we do as professionally as we can. The many intangibles, though, place the outcome out of our hands and those intangibles will be waiting for us at the next trial. Second-guessing ourselves in the hope we can, somehow, gain control of these things would be unhelpful, time-consuming, and maybe even counter-productive.


  1. I notice that you do not include one major reason why a case may be "lost". That is: maybe the defendant was actually innocent!

  2. Well, to be fair (to me) I was listing reasons we don't sit down and autopsy our cases, rather than reasons we might lose.
    I would imagine we'd do a whole lot of self-analysis if we knew we were trying innocent people. What a frightful notion!

  3. It was interesting to get the perspective of a prosecutor on this issue. As you probably know, there are many defense attorneys who spend a lot of time reflecting on lost trials. I am one of them.

    When we win a trial, we feel like we are ten-feet-tall and when we lose a trial, many of us feel like miserable failures. I agree that the what-iffing and shoulda, woulda, coulda stuff is not always terribly productive. And some lawyers will tell you not to whine or to hang your head but to move on to the next trial. This is probably good advice. At the same time, the self-reflection that results from a lost trial can also stimulate your growth as a criminal defense lawyer.

    I would imagine that, from the prosecutor's perspective, you can take comfort from knowing that you have done everything you can to make the government's case. After that, the matter is outside of your control. The system does its thing and hopefully arrives at the right outcome. I would assume that in most cases a prosecutor has a more sanguine view of the criminal justice system than a criminal defense attorney.

  4. 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.

  5. very interesting stuff, DAC.

    I have another question about point 3 - namely, how do you keep all of those cases straight? I'm not sure my brain could contemplate 150 cases, let alone have to negotiate and prosecute them as well.

  6. This entry prompted at least two other blog entries, first at my blog ( and then at Mirriam Seddiq's Not Guilty.

    It's always a good sign for me when someone else picks up up something I've written. I understand you are now on a well-deserved (I'm sure) vacation but hope you will check out the blog entries when you return.


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