Prosecutors
The lawyer-prosecutor relationship appeared every bit as important as the lawyerclient relationship. On average, all lawyers seemed to spend as much, if not more, time discussing cases with prosecutors as they did with clients.
In addition, most lawyers tended to talk to prosecutors before they talked to clients. As a result, many lawyers' views of cases seemed to be shaped to a greater extent by the prosecutors' understandings than those of their clients. A little of the significance of this relationship can be seen in the following exchanges where lawyers collected their disclosure from prosecutors in the courtroom:[Lawyer] What do you think?
[Prosecutor] Looks like he did it to me.
[Lawyer] There's not really a deal to be done, is there?
[Prosecutor] He either pleads and gets seven months or goes to trial and gets nine. [Lawyer] Right, okay, thank you. I'll put that to him when I see him.
(Shelly, solicitor, Radcliffe and Musk, and Frank Herbert, prosecutor, OR)
[Prosecutor] Do you know anything about it?
[Lawyer] I don't yet, but I'm sure I soon will.
[Prosecutor] He's in on a warrant.
[Lawyer] For what?
[Prosecutor] For theft.
[Lawyer] Aww. Did he do it?
[Prosecutor] Yeah. Hasn't admitted it.
[Lawyer] Great: straightforward shoplifting.
(Jeffrey Eugenides, prosecutor, and Eileen, solicitor, Radcliffe and Musk, OR) Prosecutors appeared to share the lawyers' presumption of guilt. As such, the collusion of the two parties, usually meant that both assumed, and favoured, guilty pleas as an outcome. Accordingly, when in the presence of prosecutors, most lawyers made no attempt to disguise the pressure they customarily exerted on clients. This was true across the firms, but can be appreciated in the following examples when Swining MacSage lawyers returned to the courtroom after having talked to their clients:
[Prosecutor] What’s happening with it, then?
[Lawyer] Oh, we’re really putting pressure on him to plead guilty.
Really putting pressure on.[Prosecutor] Will he?
[Lawyer] I don’t know, he should.
[Prosecutor] Yeah.
(James Ballard, prosecutor, and Laura, solicitor, Swining MacSage, OR)
[Lawyer] He’s pleading not guilty.
[Prosecutor] Why!?
[Lawyer] Because, well.
[Prosecutor] Oh, go on, make me laugh. Well, I just really wouldn’t have expected him to go guilty.
[Lawyer] I know.
[Prosecutor] What a twat.
[Lawyer] I’ve talked to him, he won’t listen.
('Thomas, partner, Swining MacSage, and Philip Dick, prosecutor, OR)
In these circumstances, decisions over whether to pursue a plea bargain appeared to owe as much, if not more, to discussions in the lawyer-prosecutor relationship than those from the lawyer-client relationship.
Combined, the foregoing has shown that many lawyers from all firms sought to speak over their clients. This can be viewed in an exchange between a Radcliffe and Musk solicitor, Teresa, and a youth client, ahead of her trial that afternoon. She faced two charges of common assault - one racially aggravated - and two of assault on a police officer, following an incident in a takeaway restaurant. Teresa had not met her client before the trial date, and had gleaned her information on the girl from the prosecutor as they discussed what should happen. In her police station interview, the girl claimed that she did not assault anybody until the police attended whereupon she acted in self-defence as they manhandled her. Teresa and the prosecutor had laughed about this. Having listened to the prosecutor, Teresa attended the client in her cell:
[Lawyer] Look, Jodie, I’ve talked to the prosecutor. I don’t think you should plead guilty to the racially aggravated [assault] as the evidence isn’t there. If I can make a deal with them, where they drop that one, would you accept that? Would you plead to the others?
[Client] Let me see the [charge] list. That one [an assault on a police officer] is a load of rubbish.
[Lawyer] Look we've accepted that, I told them you would.
I think you need to accept that the evidence is quite strong.[Client] Come on. The evidence isn't strong on that? The police are obviously going to stick up for each other.
[Lawyer] But you still weren't pleasant. Listen to me, Jodie, I'm going to explain. If you plead guilty on that, we can explain to the court that what was happening made you respond in a certain way.
[Client] But they'll just say I had no excuse for spitting. I was pushed to the ground! I still have the marks.
[Lawyer] It's called mitigation. It means we can tell them what you say happened afterwards.
[Client] No, I'm not having that.
[Lawyer] Look, Jodie, I will tell them what you say happened.
[Client] Hang on, hang on. Let me say something. Because this is the only time I get to actually say something. I never get to say anything.
[Lawyer] Later, Jodie. Just listen to me for now.
(Teresa, solicitor, and Jodie Fields, client, Radcliffe and Musk, INT)
After two more discussions with the prosecutor, Teresa persuaded the girl to plead guilty to all the assaults and had the racially aggravated charge dropped. However, the client still protested her innocence - to Teresa, her youth worker, the clerk and the bench - even as she was sentenced.
The participant observation, then, appeared to present a strained lawyer-client relationship. Most lawyers spoke over their clients, persuading clients to take cases in the direction that the lawyer chose. This meant the outcomes sought were not necessarily those that clients had wanted, as lawyers from all firms would push clients towards guilty pleas. This stands at odds with the formal interviews, an inconsistency pursued in the following section.
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