Ask Derek: How can you defend criminals?

It’s the number one question I am asked at social gatherings, when a person learns what I do for a living:

“Criminal defense lawyer?  How can you represent someone you know is guilty?”

I thought I’d take a crack at that question today.  These aren’t all my answers, only the top ones:

1.  Everyone has the right to a defense.

The first time I heard this question, I was at a doctor’s office for an appointment, and the nurse taking my blood pressure asked me about my job.  I told her that I was a law student (this was long ago) studying to become a lawyer, but that my dream upon graduation was to practice criminal law on the defense side.  She frowned and asked me the question above.

My answer to her then was, I think, the most important one: Everyone charged with a crime has a right to a strong defense.  It’s guaranteed in the Bill of Rights to our constitution.  The Sixth Amendment specifically states that the “accused shall enjoy the right… to have the Assistance of Counsel for his defence.”  

If a “right” to something actually means anything, that meaning must hold true even in the most challenging of circumstances.  If a right was easy to uphold, it wouldn’t need to be spelled out in the law at all.  By enshrining the right to a lawyer in our founding document, the framers of the constitution touched on a true American value- that we are all innocent until proven guilty in a court of law, and that anyone charged with a crime has the right to an attorney whose sole job is to fight for the accused regardless of the power of the government or public opinion.  A criminal defense lawyer is often the very last line of defense between a person and the government.

No one likes crime, but defending the criminal to make sure that his rights are respected and that our system upholds our values, is something that I am honored to be able to do.  Being a professional means you set aside any personal distaste you might have for the client or the facts of their case, and fight for them as if it were your own life at stake.        

2.  Guilty of what crime?

If I bring a fraudulent check into a bank and knowingly try to cash it, what crime or crimes have I committed?  Off the top of my head, I can think of at least six separate felonies that it could be charged as: Forgery, Identity Theft, Trafficking in Stolen Property, Possession of Stolen Property, Unlawful Possession of a Payment Instrument, and Criminal Impersonation.  There’s a whole bunch of other charges that are related and could possibly be added too, like theft, mail theft, burglary, or vehicle prowling.

So who gets to decide what crimes are charged?  Well, the district attorney or the prosecutor reviews and files charges (grand juries are not regularly used in Washington courts, unlike in federal court and some other jurisdictions).  How many charges get added could depend on how eager the prosecution is to charge a person.

But what if they get it wrong?  Or what if they charged a crime that just doesn’t quite fit?  Or what if the person charged has a bad reputation in the community and more charges get added because they are perceived as being a “bad egg.”  Shouldn’t a goal of society be to hold people accountable for the actual offenses they commit?

If you agree with me that YES is the answer to that last question, you’ll understand why people who are guilty of some crime but not all the crimes have the right and need for a good criminal defense lawyer to help.

My job often is to dive deep into a case and make sure that crimes that don’t fit the facts get eliminated from consideration.  Sometimes that can be pretty challenging, as in my example above, where there’s a lot of overlap between similar crimes.  It takes time, experience, and a careful eye to make sure a client’s rights are respected by making sure they are not held for responsible for crimes they didn’t commit.

3.  Innocent people are wrongly charged.

William Blackstone, a legal expert in Britain in the 1700’s, famously said “It is better that ten guilty persons escape than that one innocent suffer.”  Today we call that Blackstone’s ratio, and it’s a concept that’s near and dear to my heart.  When in doubt, we as a society should err on the side of innocence rather than guilt.

The fact of society today is that many people are wrongly accused of crimes.  That’s bad enough, but even worse is the fact that far too often, innocent people are wrongly convicted of crimes they didn’t commit.  My last post about eyewitness identification quoted a statistic from the Innocence Project discussing the more than 375 wrongful convictions in the U.S. that have been overturned through the use of DNA evidence.  So, we know it happens.

Representing an innocent client is both a rewarding and a challenging experience.  But, the simple truth is, there is no way to guarantee any potential client who walks through the door is innocent.  Sometimes it’s very obvious, other times not so much.  You have to represent the innocent and the guilty alike, and make sure that the client’s rights are being respected.  Hold the government to its burden of proof no matter what – if you do that, then it really doesn’t matter what kind of case walks through your door.

-Derek

derek@conomlaw.com