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Being a Defense Attorney for Someone You Feel is Guilty

published October 15, 2013

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( 293 votes, average: 4.5 out of 5)
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Being a Defense Attorney for Someone You Feel is Guilty

What would it be like to represent someone who you felt was guilty? We asked criminal defense attorneys how they have dealt with that very situation and wanted to share their thoughts. We also included a few thoughts from non-attorneys and even one client who shared how he felt when his attorney believed he was guilty. We hope you find them as interesting and insightful as we did.

I have been practicing criminal law in Philadelphia for over thirty years. Most clients are not innocent. However, under our constitution the government has the burden to prove guilt beyond a reasonable doubt. Our democracy does not permit people to be imprisoned upon hunches or suspicions - the government must prove its case before a jury. My job as a defense attorney is to present all mitigating factors and to hold the government to its burden which the constitution requires. The jury is the arbiter of guilt, not the defense attorney.

Hope C. Lefeber, Esquire
Hope C. Lefeber, LLC
Philadelphia, PA

I treat it like I would any other case. I review the evidence, negotiate the most favorable plea offer, then inform my client. If he rejects it and winds up with a harsher sentence because he gambled and lost at trial, I don't lose any sleep knowing I did the best I could for him/her.

Shane Fischer, Attorney at Law
Winter Park, FL

I answer your question with one short phrase - do your job and do it well. As a young a lawyer I handled criminal cases where my client told he or she was guilty. Did I stop representing the client. Not at all. When my client blurted out "How can you help me, I did it," did he or she actually know with what it was he or she was being charged? Did my client know that rules of criminal procedure may have been violated by the police or prosecution? Did my client understand the burden of proof on the government? Could my client effectively evaluate the evidence? Does my client appreciate holes in the government's case? One thing I never did do in such a situation - never let my client testify.

Ramsey A. Bahrawy, Esq.

My book "Lessons From Bill" is a biography about attorney Bill May, a hippie radical-turned-star prosecutor-turned prestigious criminal defense attorney who worked closely with future member of the Texas House of Representatives and Texas Attorney General Jim Mattox. In private practice, he went on to have many high profile murder case clients, like Woody Harrelson's father, and mayor of Ingleside Mark Crawford, for example. Some of his clients were innocent, and some were guilty. I asked him how he felt about representing guilty clients.

He explained that they teach you in law school how to take on both sides of any argument so the skill part came easily for him, but he didn't experience negative emotions about representing guilty clients since he knew that the presence of one loving, attentive adult in their life, and/or money, could have corrected their deficits long ago and prevented them from committing crimes. He also knew that any one of us has the ability to snap.

Marina Ginn

One of the questions I'm most frequently asked at cocktail parties is "How can you represent people that you think are guilty?" It's a great question. Thankfully, I've got some great answers.

First, a little context. I may have my views on a client's guilt or innocence. I may have some hunches, or even some strong suspicions. But unless I was a percipient witness to the crime my client has been charged with (in which case I shouldn't be representing that client anyway), I really don't know whether or not my client is guilty. If that sounds too cute, and like splitting hairs, it is. But those are important hairs to split.

This is because of my unique role as a criminal defense attorney. I am the one person on the planet whose job it is to stand up for the person accused. The rules of the game - and I didn't make these up, but they are the rules - is that no one is to be convicted of a crime unless the government can prove each and every element beyond a reasonable doubt, the highest standard we have in the law. And if there is a reasonable doubt as to a single element of the offense, then the accused is entitled to an acquittal.

So with this in mind, regardless of my own personal views about guilt or innocence, my role is that of Quality Control Officer, to test and probe and poke at each item of evidence the government is attempting to use to convict my client, and to use every legal means at my disposal to vindicate that client. Unlike the prosecutor, whose job is to seek justice, I care only about vindicating my client.

This is but one reason why I dislike the labels "guilt" and "innocence" in the context of a criminal case. What is really at stake is whether the case is "proven" or "not proven" beyond a reasonable doubt. If it isn't proven, then an acquittal is a just and proper result. There is a world of difference between "not proven" and innocence, and for those of us in Quality Control, the only thing that matters is whether a case is proven or not proven.

When viewed through that lens, my thoughts about my client's innocence are, appropriately, totally and completely irrelevant.

Darren Kavinoky,

I can tell you what it's like to be the client when your attorney believes you are guilty, even though you have everything necessary to prove otherwise. He simply doesn't introduce any of it in court and a jury levies a 1.3 million dollar judgment against you for speech someone didn't like.

Joel Selmeier

I deal with this issue frequently. We take 95% of our cases to trial, regardless of guilt or innocence.

Here is a quote I made to a journalist a few years ago about "justice" and defending "guilty" men:

"I learn best by doing, so I took every case that came my way, keeping the calendar full, but not liking the work very much. I had regretted every plea deal, so I took all my cases to trial. Even when I was home, my mind was in the courtroom: plotting strategy, analyzing mistakes. I watched recordings of lectures by famous attorneys and took courses on trial technique. I read dozens of books about trial skills as well as biographies of lawyers, fighters and heroes.

Of all the attorneys I studied, my favorite was Albert Krieger, who had defended the mobster John Gotti. He advised always, always keep things simple. The jury is learning in real time, so an uncomplicated message is the most successful. Relentlessly attack the weakest part of the prosecution' case and infect it, like a parasite, with doubt. If you can't rebut something, ignore it or embrace and declare it irrelevant. Make most tactical and strategic decisions without consulting your client. Only amateur lawyers are client centric, the client is just one of the facts.

At first, it seemed cynical to be that detached. I wanted to know that I had a guy worth defending. Yet attachment hadn't improved my chances of winning. In Hunsaker, everyone, including my client, duped me. I stood in my righteousness, trying to fight well by following principles. Screw the principles. There are many innocent men in jail and the prosecution is corrupt. The more I studied and reconsidered my cases, the more my idea of justice changed. Justice is a knife fight. It's two guys in a back alley, with justice for the one with the better knife and the greater skill. Justice was my client walking out the door."

Michael Waddington
Attorney at Law
Licensed in GA, SC, PA, & NJ

For me, it isn't about guilt or innocence it's about rights. Rather than looking at it as defending a guilty person, I choose to see myself defending the rights bestowed upon all of our citizens by the Constitution. We are all afforded the presumption of innocence, the right to due process and to be free of unwarranted arrests and prosecution. My passion comes from being put in the position to be a conduit of the Constitution to ensure that guilty or innocent, personal rights prevail.

On a personal level, it is often times easier to defend one that you know did commit the crime. Nobody is perfect, but it's my job to help them. A person who you honestly believe to be innocent, however, can be much more difficult. Their plight has the ability to eat at your soul. You become then, this person's savior rather than the cloaked defender of their rights. It becomes much more of a personal quest.

Timothy Van Name
Van Name & Associates
Miami, FL

In my first semester of law school, I once visited my Criminal Law Professor to discuss some class issue. While there, I mentioned to him that I like criminal law, and I like trial work, but I wasn't sure if I could defend someone who was guilty. He answered, "Well, we don't know they're guilty until we convict them."

I'm proud of our country, our Constitution, and our legal system, because we mandate that the government must meet certain evidentiary thresholds and burdens to incarcerate and punish our people. We cannot be detained and apprehended (i.e. arrested), unless an agent of the government finds probable cause to believe we have committed a crime. Normally, an arrestee is released from jail without bail or with the posting of a minimal financial commitment, designed to assure the person does not evade the legal proceedings. And, the alleged crimes are just that - allegations, until the government proves the elements of the crimes beyond, and to the exclusion of, all reasonable doubt to the satisfaction of a panel of other citizens. Not beyond all doubt, but beyond all reasonable doubt. All the while, attorneys advocate for the defendant's constitutional rights and protections. Thanks to television, movies, and real-life criminal trial media coverage, we all have a sense of the criminal legal procedures. But, when we step back and take a wide view of our system, we notice that we demand more from the federal and state governments than has normally been demanded from governments during the course of time.

Phrased differently, a person is not guilty, because a police officer thinks he is. Likewise, a person is not guilty, because a prosecutor thinks he is. Nor is he guilty, because his neighbors or the media thinks he is. A person is only guilty of an offense (and eligible for state-imposed punishment) when the government's allegations are vetted through a fair and impartial decision-maker (i.e. a jury) in a system that promotes and ensures fairness.

Now, obviously, defense attorneys are human beings and most of us aren't stupid. I can't ignore or avoid any conclusion that a client may have committed an alleged crime or something similar to it. Likewise, we can't avoid the obvious conclusion that someone was hurt or killed. But, my opinion of a client's likely guilt only serves to empower me to ensure that the government has and continues to follow the rules. By serving as the advocate that balances out the scales of justice for all defendants, defense attorneys ensure that the government only convicts people for the crimes that the evidence supports and punishes them commensurate to the facts and circumstances of that crime.

Over the course of the world's history, including modern times, many countries imprison, and otherwise punish, people via a process that is far less than far. I believe our country's notion of fairness and due process is part of the idea of American Exceptionalism. It is, in part, what our Armed Forces swore to protect and for which many men and women died.

Years ago, my law professor was speaking to defense attorney's role in defending and advocating for the rule of law and our system of due process. He was right. And, that's why I can defend people accused of crimes, even if I might think they're "guilty."

Alan A. Fowler, Esq.
Alan Fowler Law, PLLC

Defending a client wherein the evidence overwhelmingly points to their guilt is by far the most rewarding and exciting part of being a criminal defense lawyer. In a packed courtroom of 125 people, and save for you and your client, 123 of them not only believe your client is guilty, they want to throw the proverbial daggers at him is tough. But it's the ultimate calling. I love being on the front lines of ensuring that the constitutional doctrines of "presumption of innocence" and "equal protection" are being applied fairly to everyone. I also love the opportunity to advocate for someone during a horrible time in their life. It's a chance to help restore my client graciously, when in all likelihood everyone else may have given up on him or her.

I also believe that I am required to provide a great defense. A great defense, particularly in cases wherein I may personally disagree with my client's actions, require me NOT to simply compartmentalize, but to get closer and dig deeper in order that I may truly relate and understand my client. Only then might I be able to truly defend them through the discovery of previously unseen affirmative defenses or mitigating factors. Representing a client well when you think they are guilty is a "noble calling" and reminds me of the fiery speech by the protagonist in the fictional drama, The American President, "America isn't easy. America is advanced citizenship. You gotta want it bad 'cause it's gonna put up a fight."

Steve Toland
Partner at Peek & Toland
Austin, TX

At first, an attorney must believe, and at a minimum hope, that their newly represented client is either: a) innocent; or, b) that the evidence, as documented in the police reports (i.e. discovery), is insufficient to prove the charged criminal acts beyond a reasonable doubt.

But, what dilemmas occur when an attorney's nightmare becomes a reality and that first belief is now a fate memory and guilt is obvious? Although that dilemma, which manifests itself upon questions of ethics and questions of what is right and wrong, has a rather simple response.

That response is either move to be officially released as the attorney of record based upon moral judgments, which is in essence the legal cowards way out; or, forge on, do what is expected, and respect the most important fundamental aspect of a criminal defense attorney: to continue to represent your client with the utmost zeal, hard work and professionalism. Period. That's the answer.

This quandary, which will occur to all criminal attorneys at one time or another during their legal careers, also applies to all forms of human life. And, this issue also applies to all charged crimes. The range of crimes can spread from lower level offenses to the most serious of crimes including murder. In addition, this issue applies to all individuals and is blind to religion, color or creed.

Therefore, under the rules promulgated within the Rules of Professional Conduct, which are the ethical guidelines for practicing attorneys, the client's best interests always prevails, The work of a criminal defense attorney is to fight for your client and to protect the interest and concepts of the Fifth, Sixth and Fourteenth Amendments of our United States Constitution.

Remember, we are not the prosecutors, whose specific role is to seek and promote justice. As defenders, we defend!

I personally have been involved in criminal cases whereupon "nice" individuals and "higher profile" people have been caught up in this web of judicial justice.

Without references to any specific names, the list encompasses, as stated, all walks of life. From the celebrity actor, the doctor and attorneys, to the average "joe" accused of a criminal offense or more.

These stories are never pleasant. However, their outcomes can still be rewarding. There is an old proverb: Justice has its roots embedded in different types of stones.

Andrew Reed Flier, Esq.
Attorney at Law

I believe in second chances. Many people make mistakes based on unfortunate circumstances, and should be given the chance to right their wrong. Often times defending someone you know is guilty, does not mean getting them off scot free, but helping them get a sentence from the judge that is appropriate. If someone steals a candy bar they should not get the death penalty. If we don't have lawyers keeping the justice system in check, the pretty soon everybody will be thrown in jail for any crime at any time for any reason.

Secondly, I am not just defending a criminal defendant. I am defending the system. Many times when we are fighting for someone, we are fighting to make sure the rules and procedures of the land are followed. If cops are not held accountable their actions, then innocent people's rights will be violated. That means we don't pick and choose who we defend. We do the best to defend every person. And if they truly are guilty and the police followed proper protocol then they will be held accountable.

Bradley Corbett
The Law Office of Bradley R. Corbett
Vista, CA

published October 15, 2013

( 293 votes, average: 4.5 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.