I do not do any criminal defense, but I’m a trial attorney. I know a lot of lawyers. Three weeks ago, I went to a happy hour in downtown Houston. It’s a fairly low-key bar and a lot of its clientele is attorneys. I’m at the bar, having a beer with one of my partners. Some guys walk in and walk up to the area of the bar where we’re sitting. My partner knows one of these guys. They’re criminal defense attorneys.
We start talking to these two criminal defense attorneys. I can tell quickly that they’re fairly established private-practice criminal defense attorneys who are a far cry from “mob lawyer from a Scorsese movie” or “sleazy defense attorney from TV.” These guys are the real deal.
They say, “We were defending a case in trial today and the jury just came back with a guilty verdict a few hours ago.” They don’t seem upset about it.
We discuss the details of the case.
My partner says, “It sounds like justice was served.”
The one of these two, who seems like the lead lawyer, orders a round.
I’ve been asked to answer a lot of questions on Quora recently, and these “How can lawyers defend guilty people?” questions come up A LOT.
I say, “People often wonder, ‘How do criminal defense attorneys defend criminal defendants in trial that they know are guilty?’ So I want to ask you, how are you okay with defending guilty people?”
He says, “Defending people who I think are guilty is easy. Defending innocent people will keep me up at night.”
“This is not the answer that people who typically pose this question are expecting.”
He goes on to discuss how, when he truly believes his client is innocent, because he has a reputation for integrity and honesty with the D.A., he can often get the charges dismissed.
There’s a big difference between a trial lawyer who is decent and one who is good, and there’s a big difference between a trial lawyer who is good and one who is really good. But even a decent trial lawyer with some experience should be able to a) follow procedure, b) cross-examine witnesses, c) argue against the state’s evidence, and d) argue burden of proof. A trial attorney’s argument isn’t a testimonial. It’s an argument. If the lawyer is experienced and at least decent, s/he can argue the case competently. Even if the lawyer believes the defendant to be guilty.
There isn’t much moral hazard in defending a guilty person, when you think about it. Juries convict at a high rate. Juries are inclined to convict, so a guilty person will probably be convicted. If the jury doesn’t convict, it’s probably because the case had a serious issue with the evidence. If the case had a serious issue with the evidence, then the person is not supposed to be convicted, even if they are not factually innocent.
But what if the defendant is innocent? What do you do when you have to defend an honest-to-goodness innocent person? This is when you realize it’s not good enough to be a decent trial lawyer, or even good. You had better bring your A+ game and be really good. That’s a lot of responsibility, isn’t it? Because what if you lose? An innocent person’s liberty is at stake.
It makes total sense. “Defending people who I think are guilty is easy. Defending innocent people will keep me up at night,” he said. Think about it.
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