He’s guilty! How can you represent him?

The underlying justice system in this country was designed to provide the accused with guarantees that his or her rights are always protected.

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Lady Justice at sunset, U.S. Supreme Court Building, Washington, D.C. (2005 Flickr image by Michael Galkovsky, CC 2.0 license)

WASHINGTON, June 25, 2017 – Today’s column title is perhaps one of the most frequently asked questions by non-lawyers concerning America’s criminal justice system. For many lawyers themselves, the answer to the title question lies deep within their conscience and their souls. Ultimately, however, that answer is not really about the person who’s charged with the crime.

What do the lawyers who represented O.J. Simpson, Casey Anthony and Bill Cosby all have in common? They all represented clients they knew, in their heart of hearts, were guilty.

So is it the money that motivates attorneys to represent a client they 99% believe is guilty? Perhaps in high profile cases. More often though, money has nothing to do with a lawyer’s motivation for taking on a case where the client is assumed to be guilty.

Good lawyers will typically not ask their clients if they “did it.” If the client were to answer “yes,” that would preclude the lawyer from calling that client as a witness. A lawyer is ethically prohibited from perpetrating a fraud upon the court. More specifically, a lawyer cannot call a witness he or she knows is going to lie.


While an attorney may truly believe his or her client is guilty, without that admission directly from the client, the attorney might still consider having the client testify. If the client then lies, technically, the lawyer has done nothing improper.

Yes. It is slimy. Good lawyers typically will not have their clients testify if the lawyer believes the client is guilty. Having a client testify subjects that client to cross examination, which, more often than not, goes very badly for the client. That’s because the client’s lying, if that would be the case, would have to be covered up by more and more lies. Since excessive lying most often backfires on the liar, the attorney simply does not allow the client to testify.

A bit of background is necessary to serve as a foundation for the real answer to why lawyers take on cases involving clients they believe – or know – to be guilty.

The criminal justice system in America is not perfect. Certainly, mistakes have been made, both in convicting innocent people (thus the birth of organizations such as Project Innocence); and in “not guilty” findings for those who truly were guilty (see the short list of well-known individuals named above).

The underlying justice system in this country was designed to provide the accused with guarantees that his or her rights are always protected. This means that, among other things, they have a right to a good and vigorous defense.

It is the state, or the prosecution, which must prove guilt beyond a reasonable doubt before the guilty finding can be entered. It is the state’s obligation to prove that guilt. If the state cannot, despite the real truth, the accused must be found not guilty.

Note the difference: “not guilty” is not “innocent.”

A key tenet in understanding the criminal justice system is that it is better to set 10 guilty persons free rather than convict one individual who is innocent. Given this understanding, lawyers representing the accused are the only source that assures the state does not break the rules and that police do things properly.

Vigorous investigation and questioning of witnesses, along with challenging the prosecution and holding them to the law’s requirements are the checks against cases that, without a defense lawyer, might transform this country into a totalitarian state, one in which the mere suggestion of guilt results in a conviction.

Our evolving system of laws – including elements like the right to remain silent, rules of evidence that prohibit using certain types of evidence, barring “hearsay” testimony and more – assure that individuals charged with a crime are judged in a fashion that is free from assumption and free from a system that would otherwise make it easy to convict individuals because it might be politically expedient, easy, or based on community sentiment to do so.

When a lawyer knows, in fact, that his or her client is guilty, there are still several reasons for representing that client.

The legal system in the United States in an adversarial one, designed with the premise that lawyers representing opposite sides or opposite points of view will do everything they can to further their client’s goals, such that in the end, the best result will be obtained.

In a criminal trial, “guilty” or “not guilty” are not the only possible results. Often, a lawyer can get a reduced charge that might carry a lighter sentence. This result, in fact, happens often, and is a desirable one in many instances for both the prosecution and for the individual accused. Often, however, this result can only be obtained through the efforts of the lawyer representing the accused.

A lawyer representing an accused client does not only work to obtain a finding of not guilty. By way of example, in many states, someone charged with first-degree murder could be put to death if convicted. A lawyer fighting for this individual might be successful in literally saving that person’s life during the sentencing stage of the case if a conviction is obtained.

One reason many attorneys might agree to represent a clearly guilty individual is because of their belief that the death penalty is simply wrong. Thus, their efforts will ultimately focus on attempting to keep the client from being put to death by the government. John Henry Browne is such an attorney.

Browne represented serial killer Ted Bundy, who terrorized communities across the U.S. in the 1970s. Browne is said to have called Bundy someone who was pure evil, and Browne admitted he had no compassion for Bundy. He took on Bundy’s representation because he wanted to save Bundy from the death penalty.

Irving Kanarek practiced law in California until 1989. He represented Charles Manson, who was convicted in 1971 of conspiracy to murder actress Sharon Tate and six other people. Said Kanarek:

“I would defend a client who I knew was guilty of horrific crimes. They have to be proved guilty. I’ve had cases where people were guilty as hell but they couldn’t prove it. And if they can’t prove it, he’s not guilty. In that case, the person walks free. That’s American justice… I took Manson’s case to fight legally admissible evidence, and the amount of that was scant. No question he was legally innocent. And, more than that, he was actually innocent. There was no evidence connecting him to those murders.”

According to Lawrence Lee, an attorney in Liverpool, England:

“Taking on the case (child accused of murder in 1993) was a mix of principle and pragmatism. A criminal lawyer who refuses a murder case, no matter how gruesome, shouldn’t be practicing law. Simple as that.”

Individual lawyers will have their own reasons and justifications for representing individuals accused of crimes, some of whom they believe to be or know to be guilty.

Ultimately, without the aggressive representation of a defense attorney, the criminal justice system would fail. The attorney taking on that representation who decides to do as little as possible – to “tank” the representation – effectively becomes the judge, the jury and the hangman.

Imagine circumstances where every bit of evidence points toward guilt, but the accused is, in fact, innocent. Does not this person deserve the most aggressive defense? If “yes” is the answer, then every individual charged does also. The bottom line is that everyone deserves a defense that tests the government’s case. Remember that the government is made up of people who sometimes have agendas and who sometimes get it wrong.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.

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