Dear Norm…

Dear Norm:

How do you defend people when you know they are guilty?


Gill T.

Dear Gill:

Believe it or not, I appreciate this question. I appreciate it every time it is asked, because it gives me the opportunity to correct what I expect are cherished misconceptions about how our “justice system” actually works.

Your question is more complex than you may have expected. There are both practical and philosophical ways to understand my duty to defend the accused.

1) Just because a client is guilty of SOMETHING doesn’t mean he’s guilty of EVERYTHING the DA has accused him of doing. On the night of their respective arrests, my clients were likely not involved in the type of activity that would be considered “innocent.” Yes, one client may have kiestered (yep, it’s a verb) several grams of crystal meth into the jail, but he insists that it was for his own “personal” use. A client may have stabbed a rival gang member in the stomach and then in the neck, but the screeching of his brakes before he jumped out of his car to do the deed shows that it was hastily-conceived murder, not “premeditated” murder. There are many ways for a DA to charge the same act, and the punishments vary wildly depending on which penal code sections they decide to hurl at my client. Often, the state will accuse my client of the most that they think they can convince a jury into believing, not what my client actually did. (So not fair!) If the DA’s office charged my clients with what they actually did, many of my clients would likely confess and thereby save a whole pile of tax dollars. Just because my client is guilty of something doesn’t mean that he’s guilty of everything he’s accused of doing. And that’s where I come in.

2) The Sixth Amendment to the US Constitution guarantees the accused the right to counsel. An additional two rights belong to the client and the client alone: the right to a jury trial (or to plea to the charges), and the right to testify (or not) at that trial. In order to make those rights more than lifeless scribblings on discolored parchment at the National Archives, the court appointed lawyer needs to table his or her tender sensibilities and find something worth saying in the event that your guilty client decides that he doesn’t want to plea. Basically, how I feel about my client is completely irrelevant to the job I have to do.

3) When you spend enough time with a person, especially in a confined space, it is fairly easy to remind yourself that this human being is not different – in any meaningful way – from every other human being that you have known. When my clients share even a tiny sliver of their life story with me, I quickly realize that very few of their personality defects or social pathologies would not have been remedied by having access to more money and at least one caring adult during their formative years. It is not uncommon for people who are abused to later abuse others or to be a victim of abuse. (This isn’t true of everyone, but the more disadvantaged a person is, the likelier this outcome will occur.) So my client beat up a rival gang member, and the other kid almost died. I admit, that’s pretty bad. But where was the “justice” system when my client’s stepdad was beating him as a 13 year old while his mom looked on? Why weren’t my tax dollars being used to educate him so that he has legitimate opportunities for employment? What “choices” did my client actually have to avoid his current situation? Answer this question again knowing that minorities are overrepresented in prison populations. Shouldn’t his punishment be reduced in proportion to our (society’s) responsibility?

I also remember that my client’s opponent is the STATE OF CALIFORNIA, which includes: a small army of police officers, several hives of district attorneys, laboratories of criminalists, and a vast reservoir of out-of-touch retirees to serve as jurors. My clients will be sentenced according to laws that were passed by ballot initiative, i.e. by voters who love double-digit sentences but hate the taxes necessary to house what will become it’s geriatric prison population with some semblance of dignity. Yeah, my client may be guilty, but in many cases the potential punishment is even more appalling than whatever crime he committed. Also, this carries more when you remember my previous point: my client’s family may have always been working against him, too. Often, I am the only person on my client’s side who is thinking of his best interest. With my juvie clients, I sometimes got the impression that I was the only adult ever to have done so.

All right, up until now, I’ve kind of avoided the question. This is because abstract existential issues don’t come up in my day-to-day assignments. In fact, the only client who ever gave me the “willies” was passed off to another lawyer when I changed assignments. But I would have defended him with my very best effort. Here’s why:

The adversarial system is in place so that innocent people are kept out of jail. I presume my clients are innocent. Even if I know otherwise, I am still obligated to act as though (because if I can’t, who else will?). If a guilty client goes free, it means something went wrong in the system: the wrong person was arrested, the evidence was seized illegally, my client was too deranged to know what he was doing was wrong, or the DA screwed something up.

In short, if the system is working properly, I should not win. And if my client is found guilty despite my best efforts, then our society has the satisfaction and peace of mind knowing that we don’t put innocent people in jail without giving them a fair shot. (In theory.)

I trust the justice system to do it’s job. For the system to work, everyone has to do their job and do it well. This means that cops do good police work and don’t resort to harassing citizens. This means that DA’s charge clients with what they actually did instead of trying to trump up charges or use dirty tricks to get promoted faster. (Or, that they actually try cases instead of settling for lesser charges. You might see how this particular fault doesn’t upset me too too much, but it should you!) This means that judges are impartial and enforce the law. This means that I do my best to provide a defense for the accused. I’m only one part of the larger whole.

In short, everything else in society is designed to rain moral judgement (and shocking consequences) upon a client’s head; perhaps his lawyer can be the one person who can restrain the urge to judge him?

I hope that this answered your question, dear reader. Other readers (dear or otherwise) should feel free to submit questions themselves. Informed readers make for better voters and jurors; my future clients will appreciate that.

Respectfully Submitted,

Norm DeGuerre

4 thoughts on “Dear Norm…

  1. So, it’s a pride of lions, a gaggle of geese, and a hive of district attorneys? Learn something new every day…

    Just discovered your blog when @gideonstrumpet mentioned it. Always nice to find a new legal blogger worth reading.

  2. When I’m Asked This Question, I GiveAnAnswerLikeYours, But Always Add That I’m Much More Worried, Concerned, Freaked Out, When Defending Someone I Think Is Innocent. That Is A Huge, Scary Responsibility. (And, Few With No Experience In ThE System EverConsider How Often Factually Innocent People Are ChargedWithCrimes.)

    1. I couldn’t agree more. It’s even scarier when you realize just how easy it is for an innocent person to be convicted. Cases with multiple eyewitnesses and confessions are being overturned due to DNA evidence. I really wonder how sure of a person’s guilt ANYONE can be.

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