Editor’s note: This is a favorite Ken Garten column from a few years ago.
Among the most common cocktail party questions posed to a lawyer is "how can you defend someone when you know they’re guilty?"
For the 80 percent of lawyers who have never handled a serious criminal matter – those who may specialize in anti-trust, product liability, estate planning, or bankruptcy – the answer is easy: "I don’t do that kind of work." For those with experience representing the accused, the answer is a little more involved, the operative terms being "know" and "guilty."
How could I represent someone in a criminal case in which I actually witnessed the offense, and would therefore "know" firsthand what truly happened? In that case, I would be a witness and could not represent the accused.
Second, "guilty" is a legal status, not a moral judgment. In our system of justice, an accused is presumed to be "not guilty" until he may be found guilty by a judge or a jury based on the evidence against him, or may plead guilty of his own volition. Until one of those occurs, he is by definition "not guilty." Thus, most of the time when clients get to me, there may be charges pending and evidence tending to incriminate them, but I do not "know" anything, and they are still "not guilty."
Oftentimes in a criminal case, it is clear that the defendant did something unlawful, but what is less clear is the grading of the offense and the appropriate punishment. Such as, was a bar fight a simple misdemeanor assault, a country boy whooping, for which the defendant should do 30 days in the county jail, or was it an attempt by the defendant to maim or kill the other guy, which should be punished by years in the state penitentiary?
These tend to be the questions for which there can be serious room for disagreement and potentially dire consequences for the accused. The role of counsel in the protection of the accused in such cases is critical – the mitigation of grading of an offense and the appropriate punishment.
Some have said, "He doesn’t deserve a lawyer." However, experience tells us that there are at least two sides to every story. Woe be to the average Joe who gets sucked into the criminal justice system without the benefit of competent counsel to advance his side, no matter how serious the charges.
True to the adversarial nature of our system of criminal justice, police, prosecutors and victims of crime tend to lean on the side of harsh offense grading and heavy punishment, and defense lawyers, defendants and loved ones of the accused favor mitigation. Fairness dictates that both sides have good counsel. In the end, either an agreement is reached at arms length by both sides taking into consideration of all the of the circumstances, or an impartial judge or jury decides. And what comes out tends to be the most objective determination of the case, good or bad.
What about: "Lawyers get bad people off on technicalities."
In reality, technicalities that result in unjust dismissals of charges are quite rare. The rules applicable to police procedures are not that difficult to follow. In fact, they have it down to a science.
In those rare instances in which the rules that protect individuals from their government are broken by law enforcement, the integrity of the system requires a remedy. But again, the exclusion of evidence of guilt or a confession due to such technicalities is rare, and the integrity of the rules and the system is more important than any single case where they may be broken.
As for those who may say, "we know he did it, we just can’t prove it." My response is, "sorry, not good enough." This is how a free society operates. To allow otherwise, well, they call that a "police state," where individuals are punished regardless of the sufficiency of evidence of their guilt. No thank you.
I buy into the system absolutely. If the government, with its vast resources, cannot produce sufficient evidence that the accused committed the offense it has charged, then I don’t have a problem with an acquittal, especially where the courts and judges, perhaps understandably, tend to give the government every break in the prosecution of their case. If the evidence proves the case, let the chips fall where they may.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.