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Friday, Aug. 26, 2016

Criminal Defense

Posted Sunday, May 23, 2010, at 5:28 PM

I am often asked, "How can you defend criminals?"

Ahem. My office doesn't defend criminals, we defend the accused. All of my clients are innocent and virtuous until proven otherwise.

Nevertheless, it is an interesting question. I'll begin the answer with something unusual: Truth from a lawyer. While I have represented some genuinely innocent people, the majority were either guilty as charged or guilty of something close.

"Well, how can you represent people you know are guilty?"

While I generally dislike all television and movies, which feature lawyers and case work for the story line, a TV promo has always stuck with me because of the clarion truth in it. The TV lawyer said, "If you think it is hard to defend the guilty, try defending the innocent." Talk about pressure. Defending the innocent is pressure packed. A person puts his entire life in your hands and there is only one possible acceptable outcome. . . . Talk about upset stomachs and sleepless nights.

Back to the point.

As a defense attorney, my job is to protect the U.S. and Indiana Constitutions. What does that mean? If the State can trample on the rights of wrongdoers and get away with it, the State can trample on the rights of us all.

Simply put, my job is to make sure that law enforcement and the prosecutor do their jobs right. If they do their jobs right, and the person is truly guilty, they will get their conviction. Moreover, they will be entitled to it. The justice system will have worked exactly as planned. If the State does not get its conviction, it is likely that the protections built into the system worked exactly as planned.

Most accused people eventually accept a plea of guilty. Why would the state offer pleas to people that they are sure are guilty? The reasons are many.

If more than 90 percent of the accused did not work out a plea, the justice system would simply cease to function. Even a simple jury trial will last three days plus the time the jury needs to deliberate. It would not be possible to process all of the cases in a timely manner.

When trying to fight the scourge of drugs, the State often has to rely on unsavory people to prove all of the elements of their case. A risky proposition for trial at best.

Sometimes there are mistakes. No one is perfect. Every time I think I have things figured out, I get a new lesson. Inevitably, even the best law enforcement officer will have a bad day from time to time. (We should all pray for our officers as they do a job that most of us could not successfully do.) Nevertheless, an unconstitutional search, seizure, or confession, is unconstitutional even if on accident.

Our system of justice was first codified by the Magna Carta in 1214. (The system of common law sprung out of the first years of the reign of William the Conqueror starting in 1066.) The theory is that in a true adversarial contest, the truth will come out and justice will be had. Its not that terribly dissimilar from the earlier belief that when the aggrieved fight to the death, God, the source of all justice, ensures that the truly virtuous will win. When the State makes its best case, the defense makes its best case, and a jury of peers hear all of the evidence, the truth should come out and justice should prevail.

Having done (the sometimes gritty) trial work for the past 15 years, I can say that I am a true believer in the system. While there will never be TRUE justice in this world, I believe that when everyone does their job, a good approximation can be had.

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