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Crossing the aisle: Lawyers find prosecutors, government defense attorneys not so different

Rusk County District Attorney Annette Barna, who was formerly a public defender, says the difference between prosecutors and defense attorneys are often made out to be much greater than they really are. (Photo by Kevin Harnack)

Rusk County District Attorney Annette Barna, who was formerly a public defender, says the difference between prosecutors and defense attorneys are often made out to be much greater than they really are. (Photo by Kevin Harnack)

Contrary to what some might assume, Rusk County District Attorney Annette Barna didn’t find her transition from being the only public defender in Rusk County to the top prosecutor to be a huge leap.

But for those in the criminal justice system who were used to her being the public defender for the last decade or so, the change probably seemed a bit bigger.

Barna has several reasons she can cite for why her transition was relatively smooth. For starters, there was her extensive experience in the criminal justice system. Also helpful was the unpaid leave she took from working as a public defender to give herself time to campaign. Altogether, she had seven months of preparation before taking office in 2016.

Barna said the difference between prosecutors and defense attorneys are often made out to be much greater than they really are.

“They are often referred to as ‘sides’ but they’re still in the same system,” said Barna. “I didn’t find the transition all that difficult and had time to prepare.”

Barna is part of a group of lawyers who have worked from both “sides” — meaning they’ve both defended and prosecuted criminal suspects. The roles often make differing sorts of demands on lawyers’ talents and abilities. But there is also quite a bit of overlap.

For Barna, prosecutors and defenders have as much in common as they do that differs.

“I look at them both as advocates, just advocating for different clients,” Barna said. “Both roles contribute to make the system work the way it is intended to work.”

Other lawyers, after working on both sides, find that they are better at doing one sort of work than the other. Such was the case for Dean Strang, a criminal-defense lawyer in Madison. Strang did a short stint at the U.S. Attorney’s Office in the Eastern District when he was a young lawyer.

During that time, he handled entry-level cases primarily involving debt collections and other routine matters related to bankruptcies. As far as criminal cases, a newbie like Strang then could hardly expect to find himself dealing with much more than small postal thefts or bank-teller thefts.

Strang left the job after less than a year after finding that he would be more effective and comfortable working as a defense lawyer.

“I was not good at it,” said Strang. “I didn’t have the spine or enthusiasm for prosecuting people. It was not a good fit. … I liked criminal law. I just thought I was on the wrong side for me.”

After spending a decade doing private criminal-defense work, Strang would go on to become the first federal defender in Wisconsin. That gave him the unusual distinction of having worked both a federal prosecutor and federal defender.

Kathy Pakes, who was DA for Rusk County several years before Barna, came to the role after doing public defender work for four years in Louisville, Kentucky.

Although she had given prosecution a try for bit in Taylor County, filling in for a prosecutor who was on maternity leave, Pakes didn’t really notice what she deemed the really big difference between the two types of practice until she was elected in Rusk County and had time to come to grips with her new responsibilities.

“It’s unchecked power,” she said. “The prosecutor has to decide: Are you going to charge this person with a crime? And you sign the complaint — there’s nothing anyone can do about it, right? There’s no oversight at all in that position. … Prosecutors have a huge amount of discretion, and it’s incredibly powerful.”

For Jay Pucek, a Milwaukee lawyer, the move was in the other direction. Pucek went from being an assistant prosecutor in the Milwaukee County DA’s Office to doing appellate work for the State Public Defender. In the end, he found the most striking difference was in who his clients were.

Going from being a defense attorney to being a prosecutor meant he went from advocating for people to representing an abstract entity: the state.

“I went from that to all of a sudden having a human being that needed assistance, needed help,” he said. “It’s not just about doing the appeal. It’s also about working with that person and making sure that they’re having a voice and say in what’s happening.”

What about resources and caseloads?

Strang noted that federal defenders and prosecutors, unlike their counterparts at the state level, still have pay parity. Meanwhile, private bar attorneys who take federal criminal cases generally receive better compensation than their state counterparts. The rate paid to private attorneys who take non-capital cases is $140 an hour, including overhead. For those who take capital cases, it’s up to $188 an hour.

Pay at the state level lags far behind, There, the private bar rate remains $40 an hour, not including overhead.

Pucek said there were no real difference between the resources found in the Milwaukee DA’s Office and those in the SPD.

“The resources are limited on both sides,” he said, “and you have to make do with what you have.”

Barna said that when she worked as a defense attorney, she generally had the same resources as prosecutors have to bring cases to a resolution. The biggest difference, she said, came to her attention when she was working as a prosecutor. She then had a whole agency she could call on. When she was a public defender, in contrast, her assistance consisted of one investigator and a legal assistant.

As for caseloads, Pucek says it’s tough to say if defenders or prosecutors are better off. Prosecutors do enjoy this advantage, though: Their ability to make charging decisions gives them at least some degree of control over their caseloads.

Barna said she was the only staff public defender working in Rusk County. Like all staff attorneys for the SPD, she had an assigned caseload she was expected to work through each year. The private bar handled the rest.

“As the district attorney in that same county I am responsible for prosecuting all cases with the help of one half-time assistant DA,” she said. “So my caseload as a DA is much larger, but the additional staff and resources help in trying to manage the increased number of cases.”

Looking back

Going back to being prosecutor isn’t in the cards for Pucek, whose work now entails deep research, writing and creative thinking. None of that really had a place in his old job. He also enjoys his ability to once again advocate for actual people — something he missed dearly when he worked as a prosecutor.

“I think that chapter in my life is closed,” Pucek said.

Pakes left the DA’s office to be legal counsel for the SPD after getting burned out by the day-to-day grind of prosecution work and deciding she wanted to spend more time with her family. Her current position has working not only as director for the assigned-counsel division of the SPD, a primarily administrative role She also tries cases and advises lawyers as the SPD’s practice-group coordinator for abusive head-trauma cases.

“I’m thinking, probably, my days of prosecution are over,” Pakes said. “Philosophically, I believe in the public-defender system. Society needs it. The system needs it. You need good people doing good work on both sides. I’m happy in the defense role.”

As for Barna, she says she intends to continue her prosecution work.

Unsurprisingly, Strang, like Pucek, has no plans to return to prosecution. He has that short stint in the U.S. Attorney’s Office to thank.

The moment he knew prosecution work wasn’t for him came at a sentencing hearing for a criminal defendant who had pleaded guilty to being part of a cocaine conspiracy. Strang, then in his early 20s, was arguing against Tom Brown, a leading criminal defense lawyer and former U.S Attorney.

“It was very shortly after that sentencing that I thought, ‘I cannot do this. I just don’t have it in me to do it,’” Strang said. “The people of the United States are entitled to strong committed representation just like every other litigant, and that wasn’t going to be me on the prosecution side.”

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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