Lawyers and Police Shifting Sides

I have been waiting years for Harry Bosch and Mickey Haller to have a real case together. They have appeared in books together (The Brass Verdict and The Reversal) but there was never a real working relationship. Harry could hardly work closely with a defence lawyer. Mickey was equally wary. There was a natural conflict of interest.

With Harry retired in The Crossing a new relationship is possible. For Mickey it is simple. Harry, the dogged and thorough investigator, can work for him to find the flaws in police investigations which Mickey will then exploit in court to create reasonable doubt.

For Harry it is more complex. Unlike some police officers he was never content to find a plausible suspect, charge the accused, assemble the evidence favourable for prosecution and let the courts sort out whether the accused is guilty. Harry had to determine the truth. He would never conclude an investigation until he was satisfied he had the actual perpetrator. The principle is best illustrated in Harry’s oft stated approach to homicide investigations – “Everybody counts or nobody counts”.

There is a different dynamic in how lawyers and police approach moving to work for the other side.

For lawyers there can be personal conflict in moving from representing accused to being a prosecutor or the reverse. In The Reversal Mickey is appointed a special prosecutor to handle a second trial with regard to Jason Jessup after DNA evidence from a semen stain on the victim’s dress proved to be from her stepfather rather than Jessup. Mickey felt uncomfortable but took on the case.

Beyond some casual comments from other defence lawyers that he had gone over to the dark side there was no reaction from other lawyers.

There is a long tradition in England of barristers both prosecuting and defending criminal cases.

That tradition carried over to Canada. When I was starting out as a young lawyer in 1975 most prosecutions in rural Saskatchewan were conducted by private practice lawyers working as agents for the Provincial Department of Justice. Lawyers routinely prosecuted and defended.

While the vast bulk of the criminal cases I have handled have been as defence counsel I have prosecuted a few cases early in my career.

Though the Province of Saskatchewan has full time prosecutors handle almost all cases within its jurisdiction the Federal Government still uses agents in rural Saskatchewan to conduct drug prosecutions and charges until other federal statutes other than the Criminal Code. There are not enough Federal prosecutions to justify full time prosecutors outside the major cities. One of my Melfort private practice colleagues in a firm down the street is the Federal agent in our area. Another part of his practice involves criminal defence work. No one cares that he is both a prosecutor and a defence counsel.

As indicated above the California bar is no different. Mickey was not ostracized because he prosecuted and defended. He actually ran for District Attorney. When he lost his fellow defence lawyers readily welcomed him back.

However, Harry is far more conflicted. It is not just that he would be expected, if working for the defence, to find weaknesses in prosecution evidence rather than solve crimes. His great and continuing reluctance to work with Mickey is because of the reaction of his fellow brothers and sisters in the Los Angeles Police Department. They will bluntly view him as a traitor to the force. There is no tolerance of a police officer doing defence work. As expected, but for a few close personal friends, Harry is shunned by the LAPD when they learn he is working for Mickey.

There is no comparable police tradition, at least in America, to that of lawyers working for the prosecution and the defence. I speak of America for I know at least one former RCMP officer who will appear as an accident reconstruction expert for the defence in Saskatchewan cases.

The American police attitude is a pity for you gain greater understanding of the criminal justice system from working on both sides. There is a better appreciation of the integrity of each side. Learning how the other side really works as a lawyer I know helps you be a better criminal lawyer no matter whether as prosecutor or defender.

With Harry feeling isolated from the Department in which he spent his working life I wonder if he will work with Mickey again. He swears this case was not the start of a new career. I think he might as well stay working with Mickey for I doubt he could ever regain the esteem of former fellow officers.

****

Connelly, Michael – (2000) - Void Moon; (2001) - A Darkness More than Night; (2001) - The Concrete Blonde (Third best fiction of 2001); (2002) - Blood Work (The Best); (2002) - City of Bones; (2003) - Lost Light; (2004) - The Narrows; (2005) - The Closers (Tied for 3rd best fiction of 2005); (2005) - The Lincoln Lawyer; (2007) - Echo Park; (2007) - The Overlook; (2008) - The Brass Verdict; (2009) – The Scarecrow; (2009) – Nine Dragons; (2011) - The Reversal; (2011) - The Fifth Witness; (2012) - The Drop; (2012) - Black Echo; (2012) - Harry Bosch: The First 20 Years; (2012) - The Black Box; (2014) - The Gods of Guilt; (2014) - The Bloody Flag Move is Sleazy and Unethical; (2015) - The Burning Room; (2015) - Everybody Counts or Nobody Counts; (2016) - The Crossing;