Having practiced criminal defense for twelve years, I’ve had the privileged to speak to a lot of classes and groups about my work. By far, the most common question that I get is, “James, how do you sleep at night defending a person that you know is guilty?”
It’s a fair question. But here are a few things to think about:
As defense counsel, your job is not to judge your client. It’s to provide a Constitutionally guaranteed defense.
A mentor once said something that has stuck with me.
“I never have the arrogance to pretend to believe whether I know someone is guilty or not.”
With wrongful conviction cases on the news seemingly every day, there was a time when a whole bunch of people (maybe even the defense attorneys) believed those people were guilty beyond a reasonable doubt. But for advancements in technology (such as DNA evidence) and individuals motivated to keep working, these recently exonerated folks would still be behind bars or dead at the hands of our government.
The United States Constitution requires that every individual, facing the possibility of having their liberty taken from them, has a right to competent and zealous representation. For me to unilaterally deprive an accused of that right because I have pre-judged them guilty would be a violation of the Constitution that was created to protect us all.
But, James, I’m sure there are clients that you “know” are guilty. What about them?
To this, I have a few points to make:
We are all criminals.
Sure, I’ve represented people that were charged with violating a criminal law, the evidence was clear, and they openly admitted the crime. But remember all of those things that you’ve done wrong that would have been a crime if you were caught.
Perhaps, in college, you drank underage. Maybe you were in high school and used a fake ID. Remember that time you stole that candy bar from the grocery store. But for luck, you would be a criminal.
The reality is that in our society, there are a lot of crimes. And if every criminal law that we violated automatically created our record, we’d all be criminals. When you think of it that way, you start to empathize with people caught up in the legal system.
Despite being the “Land of the Free,” everything seems to be a crime.
The reality is that we’ve over criminalized human behavior. In Virginia, it’s a crime if you exceed the speed limit by 20 miles per hour. It’s a crime of moral turpitude for a college kid to use a fake ID to buy beer. Despite COVID, it’s a crime to wear a mask in public!
While these crimes may seem innocuous, the reality is that the over-criminalization of our society stems from Jim Crow Era laws and have grown from there. Criminal laws are disproportionately enforced upon minorities. This effect is amplified when you factor in socio-economic factors that have been instilled since the creation of our union. The reality is, our Criminal Justice System, in many ways, is broken.
Often times, people are over charged.
To make things worse, because the threshold of our criminal laws is so low, it’s not rare that the accused are over-charged. And this system encourages over-charging to compel the accused to plead guilty and not exercise their Constitutional Right to Trial.
A perfect example is the charge of Assault on Law Enforcement Officer. As I’ve written before, it’s not rare for law enforcement to investigate someone, and during the course of that investigation, claim that they were assaulted. Because the threshold of assault is so low, and the accused now faces a felony conviction and a mandatory six month jail sentence, in court, the accused have little leverage to fight their underlying charge because of the independent charge of Assault on LEO.
It’s a crime to be an addict or mentally ill.
Another reality is that much of our Criminal Justice system targets the individuals in our community that need the most help – those addicted to drugs and individuals suffering from severe mental illness. Without question, much of law enforcement-citizen interaction stems from drug use and mental health issues.
Law enforcement search individuals, cars and houses trying to find drugs. When they do, they prosecute. With these prosecutions come permanent criminal records.
When family members or other people witness individuals suffering from a mental health event, they are compelled to call 911 because they have no other option. Often, this leads to arrests for domestic assault, trespass, disorderly conduct, and yes, Assault on Law Enforcement. As is becoming clearer by the day, our Criminal Justice System is not a mental health system. And the results make this obvious.
It’s with humility that I serve as Criminal Defense Counsel and represent, “guilty” people because I know that in the blink of an eye that it could be me. And but for the fortunes that I’ve been blessed with, through no effort of my own, that it is not me.
As is often said in the Criminal Defense World, “let us not be judge solely by the worst events in our lives. We are so much more than that.”
But, James, what about the “truly evil?” How can you help them?
I know to whom you’re referring – rapists, murderers, child molesters.
What I can tell you is this, I’ve been fortunate enough to have really great mentors throughout my career. And likely one of the smartest lawyers I’ve ever known, who worked on countless death penalty cases said it best:
“If our Constitutional system doesn’t provide rights for the worst of cases, how can we ever expect it to work for the average person?”
When it comes to the rights of those accused of a crime, often, those rules are formed during the most horrific of cases. Cases where there are truly tragic facts, which compel the government to push the boundaries of the law to secure a conviction. It’s at these boundaries where rights are defined, and once those boundaries are modified, the changes trickle down to everyone.
While much of my career has been spent on “lesser crimes” cases, I have indeed defended individuals that have compelled friends and family to look me straight in the eyes and say, “James, how can you defend that person?” My response is simple – because that’s what our Constitution guarantees for all of us.
I’ve been very blessed in my life. To my knowledge, I’ve never had a close friend or family member be the victim of a truly horrific crime. Would my feelings change if that ever happens, or if someone shared with me an experience of which I was previously unaware? Perhaps. I’m only human.
But if I ever get to the point in my life where I’m not sure that I can fulfill my Constitutional duties, my new duty will be to find a new career. Because our system doesn’t work unless every accused, “good” or “bad,” receives their right to counsel.