Before I became a criminal defense attorney, I was a prosecutor.
I spent several years as a Deputy District Attorney in Colorado’s Fourth Judicial District ( El Paso and Teller Counties), prosecuting cases. I reviewed police reports, evaluated evidence, negotiated plea agreements, and tried criminal cases.
Since 2007, I’ve represented people accused of crimes rather than prosecuting them.
I’ve spent time on both sides of a criminal case. I understand how prosecutors evaluate evidence, what makes them concerned about taking a case to trial, and what can influence their decisions during plea negotiations.
That experience informs how I approach defending my clients.
If you’re looking for a criminal defense attorney in Colorado Springs, here’s what you should know about hiring a former prosecutor and how that experience may benefit your case.
A prosecutor represents the government in criminal proceedings.
In Colorado, deputy district attorneys prosecute state criminal cases on behalf of the People of the State of Colorado.
Their responsibilities typically include reviewing police reports, evaluating evidence, making charging decisions within their authority, negotiating plea agreements, preparing witnesses, and presenting cases at trial.
A criminal defense attorney represents the person accused of committing a crime.
The defense attorney’s responsibility is to protect the client’s constitutional rights, investigate the allegations, challenge the prosecution’s evidence, and work toward the best available legal outcome.
Those are very different responsibilities.
Having performed both jobs gives me a perspective that I believe is valuable when defending someone against criminal charges.
I understand how a prosecutor might view a case before the defense attorney ever enters the courtroom.
I also understand that a police report telling a convincing story doesn’t necessarily mean the government can prove its allegations beyond a reasonable doubt.
Those are two very different things.
When searching for an attorney, consider their experience, education and skills.
As a former prosecutor myself, I often find other former prosecutors turned defense attorneys when I recommend attorneys outside of my practice area. I think the experience is a very valuable tool in a defense attorney’s skill set.
1. Understanding How Prosecutors Evaluate Criminal Cases
When I review a criminal case, one of my first questions is how I would evaluate the evidence if I were still prosecuting it.
What would I need to prove?
Which witnesses would I rely on?
What evidence would be most persuasive to a jury?
And perhaps most importantly, where would I be concerned that the case might fall apart?
Those questions help me identify the issues that deserve the most attention.
For example, consider a criminal assault case where the alleged victim claims that my client started a fight.
The police report may present that account as an established fact.
But what happens when surveillance video contradicts the alleged victim’s version? What if another witness describes the incident differently? What if the evidence supports self-defense?
A prosecutor has to consider those problems when determining whether the case can be proven.
As a defense attorney, I look for them.
Sometimes the strongest defense comes from evidence the police overlooked. Other times, it comes from demonstrating that the government’s evidence doesn’t establish an essential element of the offense.
Understanding how prosecutors evaluate those weaknesses can help me decide where to focus my investigation.
2. Knowing What Matters During Plea Negotiations
Most criminal cases resolve without a trial.
That makes plea negotiations an important part of criminal defense.
But effective negotiation involves more than asking a prosecutor to reduce the charge.
I need to understand what evidence supports the prosecution’s case, what evidence undermines it, and what legal arguments might affect the outcome at trial.
When I was a prosecutor, I had to evaluate cases based on the available evidence, the applicable law, and the likelihood of obtaining a conviction.
I understand that process because I’ve done it.
If I believe the government has a significant evidentiary problem, I want to explain exactly what that problem is and why it matters.
That might involve:
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A witness whose statements have changed.
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Evidence obtained through an unconstitutional search.
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A questionable identification.
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A lack of evidence establishing the required criminal intent.
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A viable claim of self-defense.
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Problems with the reliability of forensic testing.
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Evidence that contradicts the prosecution’s theory.
Those issues may create an opportunity for a reduced charge, a deferred judgment, or a dismissal.
Of course, prosecutors are not required to agree with the defense. A plea offer depends on the facts, the charges, the defendant’s history, and the prosecutor’s assessment of the case.
And even when a plea agreement is reached, the court has an important role in accepting the plea and imposing sentence.
I discuss the difference between negotiating a resolution and taking a case to trial in my article on Plea Bargain vs. Trial: How to Weigh Your Options in Colorado.
The point is that knowing how to negotiate matters. Understanding the prosecution’s perspective can help.
3. Anticipating the Prosecution’s Trial Strategy
Trying criminal cases as a prosecutor taught me how the government prepares for trial.
Prosecutors must decide which witnesses to call, how to introduce evidence, how to address weaknesses in their case, and how to persuade jurors that the evidence establishes guilt beyond a reasonable doubt.
As a defense attorney, I consider those same issues from the opposite perspective.
I want to know what the prosecution will emphasize and how I can effectively challenge it.
Sometimes that means filing a motion to suppress evidence.
Sometimes it means preparing to cross-examine an important witness about inconsistent statements.
Other times, it means presenting evidence that supports an alternative explanation of what happened.
Trial preparation also requires understanding how jurors evaluate witnesses.
A witness may sound convincing until cross-examination reveals important inconsistencies. A scientific test may appear reliable until an expert explains a problem with how it was administered or interpreted.
I believe effective criminal defense requires anticipating these issues before trial, rather than reacting to them after the prosecution presents its case.
4. Recognizing Weaknesses in Cases
Let’s use the example of DUI and DWAI cases.
Colorado DUI cases often involve several distinct evidentiary questions.
Was the traffic stop legally justified?
Did the officer have probable cause to make an arrest?
Were the roadside tests properly administered?
Were there circumstances that could explain the driver’s performance other than intoxication?
Were the breath or blood tests performed and interpreted properly?
Does the evidence establish that the person was driving under the influence or while their ability was impaired?
When I prosecuted DUI cases, I learned how the government uses police observations, roadside tests, chemical testing, and witness testimony to establish impairment.
Now I examine that same evidence for problems.
An officer’s conclusion that someone was intoxicated is not the same thing as proof beyond a reasonable doubt.
The prosecution must prove the elements of the charged offense with admissible evidence.
If you’re facing an alcohol-related driving charge, my article on common defenses to a DUI charge discusses some of the issues that may arise.
You can also learn more about my Colorado Springs DUI defense practice.
Can a Former Prosecutor Represent Someone Charged by Their Old District Attorney’s Office?
Generally, yes.
There is no Colorado law that automatically prohibits a former prosecutor from representing criminal defendants in the same judicial district where the attorney previously worked.
However, former government attorneys must comply with specific ethical restrictions.
Colorado Rule of Professional Conduct 1.11 addresses conflicts of interest involving former and current government attorneys.
What Does Colorado Rule of Professional Conduct 1.11 Require?
Under Rule 1.11(a), a lawyer who previously served as a government attorney generally cannot represent a private client in connection with a matter in which the lawyer participated personally and substantially while working for the government.
There is an exception if the appropriate government agency gives informed consent, confirmed in writing.
For example, suppose a deputy district attorney substantially participated in prosecuting a particular criminal case.
That attorney could not simply leave the District Attorney’s Office and begin representing the defendant in that same matter.
The rule requires the appropriate government agency’s informed written consent before the attorney may undertake that representation.
Rule 1.11 also restricts representation when a former government attorney possesses confidential government information about a person that could be used to that person’s material disadvantage.
These restrictions protect confidential information and help prevent conflicts of interest.
The rule does not prevent a former prosecutor from defending people in unrelated cases simply because the same District Attorney’s Office is prosecuting them.
You can read the applicable rule in the Colorado Rules of Professional Conduct, Rule 1.11.
Does Hiring a Former Prosecutor Mean You’ll Get a Better Plea Deal?
No attorney can promise that.
A former prosecutor may understand how plea negotiations work from the government’s perspective, but that doesn’t automatically translate into a better offer.
The strength of the evidence matters.
The defendant’s criminal history matters.
The nature of the charge matters.
So does the prosecutor’s willingness to negotiate.
I believe one of the most important things a defense attorney can do is identify genuine weaknesses in the prosecution’s case and present them effectively.
That is far more valuable than simply telling the prosecutor that the defendant is a good person who deserves a break.
There may be cases where mitigation is the most important consideration. A client’s lack of criminal history, military service, employment, treatment efforts, or other personal circumstances can be relevant.
But there are also cases where the government has a serious problem proving the allegations.
Those cases require a different approach.
My job is to understand which arguments actually matter and use them effectively.
Is a Former Prosecutor a Better Criminal Defense Attorney?
Not necessarily.
I’ve known excellent criminal defense attorneys who never worked as prosecutors.
I’ve also known former prosecutors who were not particularly effective defense lawyers.
A prosecution background is valuable experience, but it doesn’t automatically make someone a better attorney.
What matters is how the lawyer uses that experience.
You should consider several things before hiring any criminal defense attorney.
Experience Handling Your Type of Criminal Charge
Criminal law covers a wide range of offenses.
A DUI case raises different issues from a felony assault, domestic violence, or white-collar criminal case.
Ask whether the attorney regularly handles cases involving the charges you’re facing.
If you’re charged with a serious felony, you should feel confident that your lawyer understands the applicable law, the potential penalties, and the procedures involved.
Actual Trial Experience
Ask about the lawyer’s trial and courtroom experience.
That includes experience selecting juries, cross-examining witnesses, presenting evidence, and arguing cases before judges and juries.
An attorney who is prepared for trial is also in a better position to evaluate whether a plea offer makes sense.
Familiarity With the Local Courts
I have practiced criminal law in Colorado Springs since 2004.
That includes my time as a prosecutor and nearly two decades in private criminal defense.
Experience in El Paso County courts is useful because I understand the local procedures and the way criminal cases typically proceed through the court system.
But local familiarity should never be confused with special influence over a judge or prosecutor.
A lawyer’s responsibility is to advocate effectively within the law, regardless of who is handling the case.
Personal Attention to Your Case
One question I encourage people to ask is who will actually handle their case.
Will you work directly with the attorney you initially meet?
Will another lawyer take over after you sign the representation agreement?
Who will review the discovery, communicate with the prosecutor, and appear in court?
At McDowell Law Firm, I personally handle my criminal defense cases.
I intentionally limit my caseload because I want the time to review the evidence, communicate directly with my clients, and prepare their cases.
If you want a broader explanation of the profession, read my article on what a criminal defense lawyer does.
For additional guidance, see my article on how to choose a criminal defense lawyer in Colorado.
What Should You Ask a Former Prosecutor Before Hiring Them?
If you’re considering hiring an attorney who previously worked as a prosecutor, I would ask a few direct questions.
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How long did you work as a prosecutor, and what types of cases did you handle?
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How long have you practiced criminal defense?
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Have you handled cases involving charges similar to mine?
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How much trial experience do you have?
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Will you personally handle my case?
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What weaknesses do you see in the prosecution’s evidence?
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What are the realistic outcomes I should consider?
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How do you approach plea negotiations?
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Are there any conflicts of interest arising from your previous government employment?
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How much will the representation cost, and what expenses are not included?
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How often do you handle cases in this jurisdiction?
Pay attention to how the attorney answers.
You should get straightforward explanations, not guarantees.
Criminal cases should be evaluated based on the evidence, the law, and the available defenses.
You can also confirm an attorney’s license and disciplinary status through the Colorado Supreme Court’s Office of Attorney Regulation Counsel.
What Is It Like Working With McDowell Law Firm?
My approach to criminal defense is straightforward.
I want to understand exactly what happened, what evidence the prosecution has, and what outcome matters most to my client.
For some clients, avoiding jail is the primary concern.
For others, a conviction could threaten their employment, professional license, military career, or ability to remain in the United States.
Those concerns can affect how we approach a case.
I Personally Review the Evidence
I don’t believe in recommending a plea agreement without understanding the evidence supporting the charge.
That may include police reports, body camera footage, witness statements, photographs, recordings, chemical testing, and other relevant materials.
I also look for evidence that law enforcement may not have collected.
Sometimes an independent investigation can substantially change the way a case is evaluated.
I Explain the Realistic Options
I want my clients to understand what the prosecution must prove and what might happen if the case goes to trial.
That includes discussing the strengths of the government’s evidence.
If the prosecution has a strong case, I’ll tell you.
If I believe there are legitimate defenses, I’ll explain them and discuss how we can present them.
My job is to give you the information necessary to make informed decisions, even when those decisions are difficult.
I Consider Consequences Beyond the Criminal Sentence
A criminal conviction can affect much more than jail time or fines.
Depending on the offense and your circumstances, it may affect employment, housing, professional licensing, immigration status, firearm rights, or military service.
This is especially important in Colorado Springs, where many residents serve in the military or work in positions requiring security clearances.
A disposition that might be acceptable for one client could create serious problems for another.
My article on how criminal convictions can affect military careers discusses some of those concerns.
What Should You Do If You’ve Been Charged With a Crime in Colorado?
Whether you hire a former prosecutor or another criminal defense attorney, there are important steps you should take after being charged.
Don’t Discuss the Allegations With Police Without Legal Advice
You have constitutional rights, including protections against compelled self-incrimination.
You generally do not have to answer investigative questions about an alleged crime.
If police want to question you, ask to speak with an attorney.
Be aware that refusing to answer investigative questions is different from refusing to comply with lawful identification requirements, court orders, or other legal obligations.
Also, do not assume that conversations with friends, family, or the alleged victim will remain private.
Statements, text messages, and social media communications can become evidence in a criminal case.
Understand Your Criminal Protection Order
Colorado law provides for mandatory protection orders in criminal cases brought under Title 18.
Under C.R.S. § 18-1-1001, the basic order prohibits conduct such as harassing, intimidating, retaliating against, or tampering with a victim or witness.
The court may impose additional restrictions, particularly in domestic violence cases.
Those restrictions may include no contact with the alleged victim, restrictions on going to certain places, or other conditions.
Do not assume that the alleged victim can authorize you to violate the order.
If you have been ordered not to contact someone, follow that order unless the court changes it.
Violating a protection order can lead to additional criminal charges.
Preserve Evidence
Write down what happened while your memory is fresh.
Save relevant messages, emails, photographs, receipts, and other records.
If witnesses may have useful information, identify them for your attorney.
Do not contact witnesses to pressure them, influence their testimony, or coordinate accounts.
If you believe surveillance footage may exist, tell your lawyer promptly. Some recording systems overwrite footage after a short period.
Pay Attention to Your Court Date
Missing court can create additional legal problems, including a bench warrant.
Keep your summons, bond paperwork, release conditions, and court notices.
If you’re unsure about a date or requirement, contact your attorney or the court.
Don’t Miss the DMV Deadline in a DUI Case
Colorado DUI cases can involve two separate proceedings.
The criminal case addresses whether you committed a DUI or DWAI offense.
The administrative proceeding addresses whether the Colorado Department of Revenue can revoke your driving privileges.
Under C.R.S. § 42-2-126, drivers generally have seven calendar days to request an Express Consent hearing after receiving the applicable revocation notice.
For a breath test or refusal, the deadline commonly runs from the date of the arrest and notice. For a blood test, it generally runs from the date on the DMV’s mailed notice.
Missing the deadline can result in losing your opportunity for a hearing.
The Colorado DMV provides information about Express Consent hearing procedures.
These are important reasons to speak with an attorney early.
Talk to a Former Prosecutor and Colorado Springs Criminal Defense Attorney
I’m Josh McDowell, the founder and president of the McDowell Law Firm in Colorado Springs.
I served as a Deputy District Attorney in the Fourth Judicial District from 2004 to 2007. Since then, I’ve devoted my practice to representing people facing criminal charges.
I handle DUI and DWAI cases, domestic violence allegations, misdemeanor and felony charges, traffic offenses, juvenile matters, and other criminal cases.
My experience as a prosecutor gives me a perspective on how the government builds and evaluates criminal cases.
My experience as a defense attorney has taught me how important it is to challenge those cases, protect my clients’ rights, and make sure the government meets its burden of proof.
I don’t promise outcomes.
What I offer is personal attention, careful preparation, and a candid assessment of the available options.
If you or someone you care about has been charged with a crime in Colorado Springs, El Paso County, or Teller County, contact McDowell Law Firm for a free consultation.
You can start with reading more about us on my criminal defense page, my DUI defense page, or my misdemeanor defense page.
We’ll discuss the charge, the process, the possible consequences, and how I may be able to help.
Frequently Asked Questions About Hiring a Former Prosecutor
Is it better to hire a former prosecutor as your defense attorney?
A former prosecutor may bring valuable experience to criminal defense, particularly in evaluating evidence, anticipating the prosecution’s strategy, and negotiating plea agreements. However, former prosecution experience alone doesn’t establish that someone is a better lawyer. Consider the attorney’s defense experience, trial skills, preparation, and communication.
Can a former prosecutor represent defendants in the same county where they worked?
Generally, yes. Colorado Rule of Professional Conduct 1.11 restricts certain representations involving matters the attorney personally and substantially handled as a government lawyer. It also protects confidential government information. It does not prohibit former prosecutors from handling unrelated criminal cases in their former judicial districts.
Can hiring a former prosecutor help get criminal charges dismissed?
It may help an attorney identify weaknesses in the prosecution’s case, but no lawyer can guarantee dismissal. Criminal charges may be dismissed for a variety of reasons, including insufficient evidence, successful legal motions, prosecutorial discretion, or other case-specific circumstances.
What should I look for when hiring a criminal defense lawyer?
Look for an attorney with substantial criminal defense experience, familiarity with the charges you’re facing, trial experience, and a willingness to explain the case clearly. Ask who will personally handle your case, how fees work, and what possible outcomes you should realistically consider.
Do I need an attorney for a Colorado DUI or DWAI charge?
You are generally not required to hire private counsel, and qualifying defendants may be eligible for appointed counsel. But DUI and DWAI charges can involve criminal penalties and significant driver’s license consequences. An experienced lawyer can evaluate the evidence, explain the legal issues, and help you understand your options. An early consultation is particularly important because of the short DMV hearing deadline.
Sources and Additional Resources
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Colorado Rules of Professional Conduct, Rule 1.9
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Colorado Supreme Court Office of Attorney Regulation Counsel
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The Texas Tribune, “Prosecutor Turned Defender Taps Full Range of Courtroom Experience”
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State Bar of Wisconsin, Ethics Opinion EF-22-01
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Florida State University Law Review, “Disqualification of Criminal Defense Attorneys Due to Prior Government Service”
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American Bar Association, Ten Principles of a Public Defense Delivery System
Recommended Reading
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Do Criminal Defense Lawyers Offer Confidential Online Consultations?
