And thank you for stopping by to comment. I’ve been a regular visitor at your blog lately and have benefited from the insights in many of your posts, but just haven’t gotten around to commenting yet.

You’re right of course. Rarely would we ever “know” whether our client is innocent or guilty, and it really shouldn’t matter. I’ve made no secret of the fact that I’ve only taken three criminal cases to trial thus far. (My plan is to eventually do nothing but criminal defense, but unfortunately in the meantime I’m doing a lot of family law, bankruptcy, civil defense, etc.) So I recognize that my thoughts on this matter are appropriately weighted accordingly. Two of those trials resulted in acquittals, and while I strongly believe my clients were “innocent,” I guess I can’t know that for sure. But I do know without any doubt that the prosecutor did not prove their guilt beyond a reasonable doubt, and that therefore they were “rightly” acquitted. The third trial resulted in a conviction (which has since been overturned on the grounds of collateral estoppel, though the attorney general just filed yesterday a petition for transfer to the supreme court), and in that case there was no doubt about what the client did, because the whole thing was caught on surveillance videotape. The sole issue was whether his shooting of another person was justified. But again, I do know without any doubt that the prosecutor did not prove beyond a reasonable doubt that my client did not reasonably fear for his life when he pulled the trigger. Furthermore, I personally believe beyond any reasonable doubt that my client was justified in pulling the trigger. Nevertheless, the jury convicted him. I failed, big time. But while I take full responsibility for my role in this miscarriage of justice, the prosecutors are also personally responsible and morally culpable for what happened. I have no respect for them as attorneys (except in the secondary sense of “respecting” them because they kicked my ass) and the bare minimum of respect for them as human beings. They deserve to be locked up more than my client does. They went above and beyond the call of duty, committing prosecutorial misconduct along the way, to convict an innocent man.

That case is Exhibit One for why I hesitate to embrace the idea that the role of the prosecutor is to “do justice” while ours is simply “to defend.” I understand the point of the formula, but it has the serious disadvantage of playing into the common perception of the criminal defense attorney as nothing but a hired gun, as a mercenary with no conscience. I spend a lot of my time as a criminal defense attorney being righteously indignant. I suppose that’s because I have a healthy sense of justice and injustice. And I can be righteously indignant about a lot of things. I can be righteously indignant because a prosecutor overcharges a defendant just because it can. I can be righteously indignant because the prosecutor got the goods on the defendant (guilty thought he might be) by unjust and unlawful means. I can be righteously indignant because a jury convicts a defendant (even a defendant who might have admitted to me his guilt) based on evidence that should have been insufficient to persuade a reasonable juror beyond a reasonable doubt. (Though again, I have not yet personally encountered a scenario in which a defendant I knew or believed to be guilty was convicted by a jury.) I can be righteously indignant because a defendant is convicted of a crime that shouldn’t be a crime at all.

If we’re going to presume that anyone is on the side of justice, the prosecutor or the criminal defense attorney, it seems to me the defense attorney has the better claim. Locking a human being up in a cage like an animal is presumptively unjust.

A while back SHG in a blog post took issue with my statement that in the cases that have meant the most to me I have felt myself squarely on the side of justice and the prosecutor squarely on the side of injustice. SHG thought this was a dangerous attitude to take, since we must represent our clients’ zealously without regard to their guilt or innocence. And that’s true so far as it goes. It is in fact our duty and the ideal to which we must aspire. But there is no worse feeling in the world than standing next to a client you know to be innocent as the guilty verdict is read. Fortunately, that has happened to me only once, and the conviction has since been overturned, but it was a doozy –attempted murder, and to top it off the judge tacked 15 years on to the advisory sentence and sentenced him to 45 years.

Truth be told, because of my limited experience, I have a limited set of data for comparison. In fact, I have not had occasion to stand next to a client I believed or knew to be guilty as a guilty verdict was read. All of my guilty clients have pled guilty (though not because I wasn’t ready and willing to fight for them at trial).

In my last case that went to trial, I ultimately accepted the case for less than the retainer I quoted as my bottom line, and agreed to accept payments for the balance extending out many months beyond the trial date (always a bad idea if one’s goal is to actually get paid). I knew the client’s family couldn’t come up with any more than they did, because his girlfriend was in tears on the phone as she told me she knew she would not be able to obtain the amount I’d told her was the absolute minimum by the date necessary. Honestly, I probably would have been far less likely to budge on my requirements if I wasn’t convinced the client was innocent and that he was being unjustly persecuted by the prosecutor, who for some diabolical reason really seemed to have it in for him. If you actually commit a burglary, then it is right and just that you pay an attorney every nickel’s worth of his time to defend your sorry ass.

I then proceeded to work the hell out of the case. After my client’s acquittal, my client’s girlfriend expressed to me that they could never have hoped or expected that I would have worked as hard as I did on the case. She seemed to intuitively understand an uncomfortable reality of law firm economics — that there is cadillac representation and chevy representation, and that though they had paid for less than a chevy representation they had received a cadillac representation (to the extent that an attorney of my experience working to the best of his ability could provide it). To her great credit, since the acquittal she has faithfully been paying the $50 a week we’d agreed upon towards the balance owed.

After the conviction of my innocent client for attempted murder, and knowing that his family was tapped out, I initially offered to do his appeal pro bono. I later recommended that he take advantage of the appointed counsel to which he was entitled, and promised to offer my assistance to his appointed counsel pro bono. I wouldn’t have done so if justice, and the injustice of his conviction, weren’t a paramount motivating factor. I probably wouldn’t have done so if I thought my client was guilty. Before his conviction, I thought and thought about his case, did a lot of research, did further research after I ran into precedent that at first sight seemed to be against us, and then concluded the case against him should be dismissed on the grounds of collateral estoppel. Collateral estoppel had not even occurred to the attorney who’d represented him at his previous trial, and the public defender who was representing him for several months before I entered my appearance (while his family was trying to get the rest of my fee together) didn’t want to file the motion to dismiss I offered him because he didn’t think the judge would by it. In fact, the trial judge didn’t buy it, but the court of appeals did. It’s hard not to think that it was my sense of the injustice being perpetrated against my client that drove me to look and look hard for every angle available on his behalf. My client had no idea he had grounds for a motion to dismiss, nor did anyone else. The amount of work I put in to the motion to dismiss was easily equal to that involved in an appeal. Granted, ideally I would have looked just as hard for a client I knew was guilty as sin.

If a lawyer is established enough to have a low-volume practice, undoubtedly he will use his discretion in deciding which cases to take. I would hope that all other things being equal, if I am ever in that situation where I have a wide range of cases to choose from, I would choose the case of the innocent client being unjustly persecuted over the case of the mob boss, even if the mob boss could pay a lot more. In a low-volume case, every accepted client, whether innocent or guilty as sin, would presumably receive a cadillac representation.

That’s a much longer answer to your question than I intended, and I hesitate to try to sum it up now in a neat bow. It’s tricky and problematic, and the censors might be watching. I have no problem whatsoever with representing clients I know to be “guilty” and trying to get them off scott free if possible by any legitimate means available. But it’s hard to deny that my own personal sense of justice remains a motivator — not so as I would, god forbid, fail to do everything I could for a “guilty” client or feel any kind of compunction whatsoever about getting him off scott free; but it may lead me to go extra miles in certain cases, or go those extra miles for clients who normally couldn’t afford it. But ideally, there should be no such thing as an “extra” mile in a criminal representation. Whatever can be done should be done. Truth be told, I haven’t really been put to the test, because I haven’t yet been called upon to go to the mat at trial for someone I believed to be guilty. Perhaps my belief that justice has been a motivator in the work I’ve done on behalf of innocent clients isn’t the whole truth, or even the greater part of the truth. Perhaps it really has been more simply about doing my duty as a lawyer, and pride in my work.

Maybe my point about “discretion” hews pretty closely to the excerpt from Walter Reaves’ post that prompted it. There are some defendants for whom I’d consider working for free or for a reduced rate, and others for whom I wouldn’t.