A newbie criminal prosecutor typically starts his or her career trying petty offenses, including infractions, violations and misdemeanors.
As a young prosecutor I sometimes sought feedback from the judges presiding over my trials after a verdict was rendered.
Early in my career I lost a trial on a third degree criminal trespass charge. The judge concluded that the People had failed to prove beyond a reasonable doubt that the defendant had knowingly entered or remained unlawfully in a building or upon real property under certain conditions. In this instance, it was vacant public land on which the town had posted no trespassing signs.
The judge waived me up to the bench following the trial. When I asked him what I might have done differently, he shrugged and told me, “Sometimes, you can’t shine sh*t.”
The statement, much like the proverb “You can put lipstick on a pig, but it’s still a pig”, made the point that dressing something up does not change what it is.
The statement has stuck with me during the years in between and has taken on multiple meanings, including:
- Do the best with the facts and law available to you.
- Take an honest, hard look at your position so you can appreciate the strengths and weaknesses of your case.
- Manage your client’s expectations in the face of weak facts or law.
- Conceding weakness on a point enhances your credibility and allows you to focus your energies and the Court’s time on stronger arguments.
- Asserting nonsensical positions – even if they are arguably made in good faith – diminishes your reputation and integrity.
Some months after that loss, another defense counsel and I approached the bench to conference a plea bargain with the same judge. He questioned why the District Attorney was offering such a lenient plea. I reminded him of the words a wise man once told me, “Sometimes, you can’t shine sh*t.” He chuckled and told me he would take the plea. I stepped back, the Court accepted the plea, and I retained my dignity while doing my job.
In preparing this article, I was surprised to learn that there are at least a dozen colorful ways to convey the same message, including putting a Bandaid on a bullet wound, papering over the cracks, putting rouge on a corpse, and you can’t make a silk purse of a sow’s ear. Did I miss any?