“How can you defend someone who’s 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 damn fine attorney.

Sometimes I gave a third answer that is 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 defenders. 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 the client is almost always going to be punished. The issue is how and how much. I was like most defenders who knew 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. 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 the 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 a guilty person 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.

          I could know I was defending the guilty, not merely assume it, only if the clients told me they were guilty. That only happened a few times, and I felt no moral qualms even in those situations. For example, Mary was a hooker on Brooklyn’s Coney Island Avenue–not the high-rent avenue then for anyone, and certainly not for a prostitute. She would do just about anything for a bit of food and some drugs. An undercover cop approached her and asked if she knew where he could make a big drug buy. She didn’t, but she asked what was in it for her if she could find out. He said $50. This was the equivalent of five or ten tricks for her.

She located where to get the drugs, and when the undercover returned, she took him to a seller in Harlem. She left after pocketing five tens. The cop made the buy, and Mary was arrested for aiding the sale. She told me this. She was guilty. She was not offered a plea bargain. We went to trial.

If convicted, the sentencing law required that she get a life sentence with at least a fifteen to twenty-five year minimum. That meant that she would have to serve whatever minimum a sentencing judge imposed before she would be eligible for parole, and, of course, she could be imprisoned until she died. I did not think such punishment just. Yes, she did something illegal, but a person like her, who was barely surviving, could hardly turn down $50, and for that $50, offered to her by the police, she would get a life sentence. She was convicted and got a life sentence as was required. I felt that it was an injustice. If, by some miracle, I had gotten an acquittal, I would have rejoiced.

          I did think about the consequences of one acquittal, however. I represented a man, Ron, on the illegal possession of a gun. He told me a story that had some plausibility but was not likely to be true. The trial went surprisingly well. From the evidence, I began to believe that he might be innocent, and to my surprise, he was acquitted.

A few months later he called me. Ron was in jail again. He was charged with rape. I wondered what I had done. Had my acquittal gotten a woman raped? He wanted me to represent him, but his case had not been assigned to me, and I said no. Later the attorney who represented him on that new charge told me that it was as phony a rape case as any he had ever seen. Ron was acquitted of the rape charge, too. He was apparently innocent.

This sequence of events bothered me. Most often after an acquittal, I had no further contact with the defendant. Ron’s situation made me wonder if I had the moral luxury of feeling good about an acquittal simply because I usually didn’t know whether the person I had helped free went on to do bad things. Would I have more doubts about what I did if I always found out what happened after a client was acquitted?

On the other hand, Ron made me think that for one of the few times I had abandoned my defender ethic. I had brushed him off instead of defending him again because I didn’t want to confront the possibility that he had committed a rape for which I perhaps should have felt a responsibility.

          Almost always, however, I could do the work and do it without moral qualms. I learned that the trial system works better than many believe. Attorneys want to believe that their skills and tactics make a difference. Once in a while the attorney does have a huge effect, but generally the attorney, at best, can only be a little bit better than the evidence presented at trial. My experience and my scholarly work convince me that almost always the verdict follows the evidence. If there is strong evidence that a person is guilty, a guilty verdict almost always follows.

          But the real reason I could do the work is that even though I respect police work, I also fear the power the police have. The same for prosecutors and judges. That fear allowed me to be a defender. The poor and the outcast need someone to stand up for them against a powerful government and its representatives…no matter what.