“How can you defend the guilty?” This is The Question I have been asked many times. Sometimes my answers have been platitudinous: To function properly our legal system requires defense of all, guilty or innocent. Sometimes my answer has been facetious: A defender prefers representing the guilty. If the client is innocent and acquitted, it is merely the system working. If the client is guilty but found not guilty, it must mean that the defender is a really good attorney.

Sometimes I gave a third answer that was slightly less facetious: The defender wants to represent the guilty because there is a lot less pressure. It feels much worse to have an innocent client go to jail than a guilty one.

No matter what my answer has been about defending the guilty, the looks on the questioners’ faces never indicate that they are satisfied with the response. The Question, however, is one asked only by those outside the public defender business. We did not discuss it among ourselves, and I only occasionally reflected on The Question.

          There is no one answer to The Question because there are many different components to the public defender’s job. Defenders spend the overwhelming amount of their effort in the plea-bargaining process, not trials. The goal is to get a more favorable plea or sentence than would occur without the defender’s efforts. The defender knows that almost always the client is going to be punished. The issue is how and how much. I was like most defenders who know that the criminal justice system is awful in many ways. Our sentencing laws are often ludicrous; prisons are terrible places; prosecutors are arrogant; judges are often dim. It is (usually) easy in the plea process to try to help even the bad people in such a bad system.

          I did not romanticize those charged with crimes. I met many people who I thought should be punished. Even so, when I saw the system operate, I saw its many, many flaws, and it was seldom a moral challenge to try to help those caught up in it.

This was fueled by my anti-authoritarian nature. I believe in a strong government, but we must have checks on the government’s power. We must try to ensure that when the government exercises power, it is doing so properly. Danger lurks if we don’t. The government’s ability to fine, imprison, and even execute is among its most awesome powers. When, as happens so often in our criminal justice system, the government seeks to impose its will on the outcast and the poor, we need to have someone pushing back against the government. Defenders act in the deeply conservative traditions of our country by trying to check governmental power. I could defend not just because I was defending an individual but because I was fighting the government. And that also meant defending the guilty.

          The person asking The Question about defending the guilty, however, is not asking about plea bargaining. They are really asking, “How can you defend someone whom at trial you know to be guilty?” How can you work for an acquittal of someone who has committed a crime and very well may commit more crimes?

The questions seem to imply that this must be a common situation, but obtaining a not-guilty verdict for one who was guilty seldom occurred. Few who admitted their guilt to me went to trial. Mostly those who said they were guilty wanted to get the best plea bargain possible.

Clients going to trial almost always maintained their innocence. I did not simply accept what they said. Often the defendants who told me they did not commit the charged crime related stories that struck me as bullshit. If I had to make the decision, those guys were guilty. But they said they were not, and it was not my job to pass judgment on them. And every so often that farfetched, remarkable story had truth in it. They were entitled to have someone fight for them because even if all the indications were to the contrary, they might not be guilty. My duty was to present the best possible case for them, and let the jury decide.

(concluded July 17)

Related Post: May 29, 2019

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