Defending the Indefensible: On Representation of Criminal Defendants

One of the most constant themes I am asked as a criminal defense attorney focuses upon representing guilty people. “How can you represent someone you know is guilty?” I always return their attention to the US Constitution and amendments 5 and 6 which are reproduced below. All tolled there are at least 19 sections to these Amendments (“speedy and public” in the 6th is an example to two subsections of a single section) and each one of these sections were of particular importance to the Founders and original authors of the Bill of Rights. Therefore they are all equally important as restraints on the authority of any level of government in the United States.

I am the first to admit, there are heinous, indefensible crimes committed everyday all over Our Country. This includes a list of acts that do not bear repeating hear, but in many People’s minds, if someone is guilty of those crimes they do not deserve the protections afforded them by this most precious document. “Lock them up and throw away the key” is a colloquialism that stands as a strong emphasis as to how we feel about these offenders. However, there have been two cultural phenomena to have emerged that throw lingering doubts as to this gut check, knee jerk reaction. The cases of The People v. Adnan Syed from the popular Serial podcast and The People v. Steven Avery from Netflix’s Making a Murderer have brought into stark contrast with the “lock em up” ideology and the protections afforded every citizen and person in the United States by these two amendments.

And that is where my role as a criminal defense attorney emerges. The rights and protections enumerated in the Constitution are there because prosecutors think they are inconvenient to their job. PERIOD. If the public did not call for extremist reactions to heinous crimes, those rights and protections would still be important. It is the government that needs to be restrained, not the people. It is the more notorious actors and agents of the government who would willfully violate these God given rights if it made their job easier, and they do so on a regular basis. Some are experts at pushing the edge of the envelope if not adept at circumventing the inconvenience of the Bill of Rights altogether.

So if a client of mine asks me the best way to avoid jail time off of an offense that they actually committed, it is my job to ensure that the prosecutor is doing their job well within the confines of their authority as spelled out in the Constitution. Otherwise we do not need to give lip service to such complexities as justice and fairness.

So defending the indefensible is not always a cake walk, there are many difficulties in reviewing the evidence that has been collected against your client, especially in violent crimes. However, it is the way that evidence is collected that is spelled out in terms like “due process” and “self incrimination.” It is the confrontation of the statements of biased witnesses that needs to be pointed out by an attorney in the trial setting. So, when it comes to protecting the public from an over aggressive prosecution it is the “Assistance of Counsel” (please note that it is indeed capitalized, making it even more significant) that stands to protect society, and not the other way around.

5th Amendment to the U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (U.S. Const. amend, V.)

6th Amendment to the U.S. Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.  (U.S. Const. amend. VI.)