Denver Bar Association
May 2006
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Why Do We Defend Guilty People?

by Lenny Frieling

The question most frequently asked of criminal defense attorneys is "Why do you defend people you know to be guilty of crimes?" I love answering that question.

First, by asking the question, the examiner assumes that our job as defense attorneys is to "get our clients off." While that may be part of the role, it is more misleading than helpful. While "working" a case to be able to decide whether or not we can "get the client off" is a critical part of the representation, but it does not define the boundaries of the representation. Thirty years of experience have led me to believe that our job is in fact similar to the job of the prosecutors, namely, to do justice.

If my goal was to "walk" every client, I would fail quite often. So would most of us. Most of my clients are guilty. If they are not guilty of precisely what they are charged, they are guilty of something similar. Although the police sometimes fail to pay attention to the Constitutions of Colorado and of the United States, and sometimes demonstrate an amazing ignorance of the applicable statutory laws, they are not totally wrong much of the time. They may think that the value of a stolen item is more than $500, making it a felony charge, when in fact the value is in the misdemeanor range; however, they are frequently correct in their belief that (1) the item in question was stolen (taken by my client with the intent to permanently deprive the owner of the property); and in their belief that: (2) the person they arrest or summons is the person who took the property.

Save me from innocent clients. I’ve had more than my share over the years. They are terrifying. The range of acceptable results (fair results) for the truly innocent client is very narrow. The range of acceptable compromise is almost non-existent. These clients are certainly part of the group of clients whom we must "get off." To make matters worse, the client/defendant believes that (1) they should not have been charged, (2) the system will protect them because they are in fact innocent, and (3) they should certainly not have to pay a defense attorney to defend them, because that is a privilege reserved for the guilty.

Our system is generally pretty fair to the guilty defendant. It does not trample on the rights of the more than 90 percent of people charged with crimes who are at least partially, if not substantially, guilty. It does not, as a matter of course, try to incarcerate them for the maximum period of time permitted by the legislature, after charging them with every possible statutory violation that the prosecution can identify. And it does not routinely take advantage of their vulnerable position. With the facts and the law generally on their side, the People could be hammering many of our clients much more severely than what happens in real life. (There are general areas in which this is less true, involving specific categories of "unpopular" defendants, such as sex offenders and domestic violence perpetrators.) There also are many experienced and wise defense attorneys who would completely disagree with everything I’m saying. Sometimes I disagree with what I’m saying. I respectfully suggest that my view is helpful and at least should be considered in determining the role of a defense attorney.

I believe that my goal is to reach a fair result for my client. If their cannabis-growing operation was illegally searched, in violation of their rights as protected and defined by the Fourth Amendment to the U.S. Constitution, "fair" might mean a complete dismissal. On the other hand, if their violent rape of a victim was in part due to a traumatic brain injury and the concomitant impairment of control and judgment, "fair" might mean something less than life in prison. "Fair" might lead to a treatment-oriented result as opposed to a punitive result. With rare exception, my clients agree with this view, and are quite happy with a "fair" resolution to their predicament. Generally, they do not expect a jury to buy a line of crap, finding them "not guilty" when they are in fact guilty as hell. (This expectation is inversely proportional to the elevation of their sociopathy scale).

While a prosecutor is attempting to treat all similarly-situated defendants alike (which is fair), my job frequently is to demonstrate to the prosecutor (and to the judge at sentencing) why my client is in fact not similarly situated. When I’m asked "Have you ever handled a case like this before?" the answer that the potential client wants to hear is "Yes, hundreds of times." What they should want to hear is "Nope, never. Although I’ve handled thousands of DUI cases, not a single one was just like yours."

I hate sports analogies, but I love this one. A superstar home-run hitter might hit 50 or more home runs a year, but generally batts around .300. That means seven out of 10 times is a strikeout! On the other hand, a batter who hits many singles, some doubles, and the occasional triple and home run (essential with the client who is actually innocent) is batting 1.000! Which is better for more of our clients? I believe that batting 1.000 is far better than striking out seven out of 10 times at bat. How does a criminal defense attorney bat 1.000? By getting a fair result in every case.

How does our obligation to provide a "zealous defense" fit in with our goal to achieve a fair result? Zealous, according to the Oxford English Dictionary, is defined as: "Full of or incited by zeal; characterized by zeal or passionate ardour; fervently devoted to the promotion of some person or cause; intensely earnest; actively enthusiastic." According to the OED, it has not meant "puritanical zeal" since the 17th century! The key is the ardent promotion of a person or cause, done with active, intensely-earnest enthusiasm. Put simply, it means that we must do the work. That includes doing a proper investigation, consulting with proper experts or investigators, talking to appropriate collateral sources such as family members, and doing the legal and factual research actively and enthusiastically. There is nothing about "zealous" that requires or suggests a "slash and burn," all-or-nothing approach. In fact, when we "do the work," we are inevitably led to discerning a fair result, based on all relevant factors. The client’s wishes (including the wish to "get off,") are certainly relevant, but they are not the only factor. The client’s wishes do not frequently change the law or the facts, but frequently lead us in the right direction, helping us to focus our enthusiasm and achieve the best possible result.

Also important is the body of law indicating what decisions are to be made by the defendant, such as whether or not to testify, whether to request a jury, and whether to accept or to reject an offer. Although legally the list of decisions left to the defendant/client is fairly short, as a practical matter, if strategy decisions are clearly explained, the defendant/client will both understand them, and will agree with the lawyer’s strategies. If the client does not agree with strategy decisions, it is very possible that the lawyer’s thinking was not well explained, or was not well thought-out. Even though we are given a lot of the decision-making power, this is power that should be exercised with great discretion. At the end of the day, a strategy decision may cause us to lose sleep, and cause the defendant to lose his freedom. The defendant must be included in all significant case decisions. Part of the skill of a lawyer is in communicating effectively not only with the prosecutor, jury and judge, but also with the client.

In spite of being convicted at trial, I have had clients express their complete satisfaction with my work, because the client (correctly) perceived that the case I presented was their case, and not some other case that I wanted to make. Going from understanding their case to explaining to them why I was making/suggesting strategy decisions should be a small step.

How can I defend someone whom I believe to be guilty? No problem. I can do it with zeal, ardor, and enthusiasm, because my cause is righteous, my goal is just, and my heart is in my work.

We are not bargaining for rugs in a bazaar. The essence of what we do is not to ensure that we "do better" than whatever the People offer. There are cases in which the People make a fair offer, and in which the proper zealous response is "Thank you, I’ll suggest that my client accept that fair offer." Experience and preparation build confidence, while insecurity and lack of preparation lead to unreasonable demands, made because we think we should make them. Unlike civil damage claims, our goal should not be to ensure that we have not "left a dollar on the table."

If our goal as defense attorneys is to achieve a fair result, and if the prosecutors live up to their obligation to "do justice," we will find that instead of constant war, we are working together to fairly resolve a case. Of course, there will always be some cases in which we must compel the prosecution to "do justice."

It is not possible to reach a fair result in every case through negotiation. A client’s priority may well be to avoid jail at all costs, while the prosecutor may believe that justice necessarily entails some amount of jail. When negotiations do not resolve an issue, we bring our litigation skills to bear. Fortunately, the same enthusiastic preparation of our client’s cause is what leads to a successful result in matters that must be litigated. In other words, do the work and all else will follow. I’ve explained it to new attorneys: "Do what you have to do to keep the money." Although I smile when I say it, there is a great deal of truth to the statement. At the end of the day, what else can we do beyond doing the work? It is what we are obligated to do. It is what we are paid to do. It is what we must do in order to keep the money. In the words of the late Lawrence Tierney, (as Joe Cabot) in Quentin Tarantino’s Reservoir Dogs, "Now get to work!"

 Lenny Frieling is an independent criminal defense attorney in Boulder and Chair of the CBA Criminal Law Section. He can be reached at (303) 666-4064.

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