Defending The Guilty (And The Innocent)

Lenny Frieling's article "Why Do We Defend Guilty People?" in the The Docket, which is the Denver Bar Association newsletter, deserves a wider audience.

He begins with the premise that "Most of my clients are guilty. If they are not guilty of precisely what they are charged, they are guilty of something similar." He explains that this is not inconsistent with the misunderstood job of a criminal defense attorney, which he explains is not primarily to "get our clients off."

What criminal defense attorneys really do, he explains, "is to reach a fair result for my client," subject to the general premise of our system that the "defendant must be included in all significant case decisions." Largely, this involves finding a punishment appropriate to the particular facts and circumstances of the defendant's case, which often means something less than a maximum sentence, and controlling exaggerated charges arising out of less serious criminal conduct. Often this is possible. He notes: "Our system is generally pretty fair to the guilty defendant."

Frieling's brief comment on the less than ten percent of people charged with crimes who are not at least partially guilty is precious:

Save me from innocent clients. I've had more than my share of the years. They are terrifying. The range of acceptable results (fair results) for the truly innocent client is very narrow. The range of acceptable compromise is almost non-existent. These clients are certainly part of the group of clients whom we musts "get off." To make matters worse, the client/defendant believes that (1) they should not have been charged, (2) the system will protect them because they are in fact innocent, and (3) they should certainly not have to pay a defense attorney to defend them, because that is a privilege reserved for the guilty.

It doesn't help that even if you are found not guilty on all counts after a trial, that you are still out the often substantial funds you had to pay a criminal defense attorney to get you that far. You have no right to seek compensation from the government for what they put you through when you are acquitted, unless (1) they lacked probable cause to charge you in the first place (a low standard), (2) had some sort of malice instead, and (3) you can prove it.

The only way to get a truly fair result for an innocent client is to get the case dismissed shortly after the client is charged. This result depends upon the mercy of the prosecuting attorney. It is rarely possible.

Frieling doesn't say it outright. But, the clear implication, for he follows the extended quote on the innocent above with his statement about the system being pretty fair to the guilty, is that our system is not generally pretty fair to the innocent. This observation is a haunting one.