some points concerning presumed guilt

My husband and I have both fielded the same question uncounted times: “How can you stand to represent a client when you know he’s guilty?” My husband is a public defender, and before I retired from the practice of law, I handled assigned counsel felony cases. It was challenging, sometimes frustrating work, but I would never call it thankless.

For one thing, most of my clients ended our publicly appointed alliance with at least a “Thanks, I know you tried,” before being handcuffed for transport either back to county jail or off to state prison.

Nevertheless, the question always prompts me to ask how anyone with the equivalent of a high school education in America, whether public, private, or homeschooling, can ask that. How can they have such a tenuous grasp of fundamental American values and legal processes? But I suppose they didn’t all have the cultural advantage of growing up watching Perry Mason blow the prosecutor out of the water when Perry exacted a confession from the real killer in court. And they didn’t all have the teachers I had for fifth-grade Social Studies and twelfth-grade American Government.

As an aside, the word transliterated “paraclete” in John 14:26 and 15:26, translated “helper” or “advocate,” that refers to the Holy Spirit that Christ will send through the Father, is the same Greek word that refers to someone who comes alongside an accused person summoned to the magistrate for questioning. The word literally means “alongside one called.” The right of support when one stands otherwise alone in a potentially life-changing, or even potentially life-forfeiting situation, is a God-given one.

When asked how a lawyer can take up the cause of someone he knows is guilty, the appropriate initial response is, How do you know he’s guilty? The judge doesn’t even know that yet–and he’s the one who will ultimately pronounce him guilty–or not guilty.

The defendant may or may not have broken the law as he is accused of doing, but he isn’t guilty unless and until the State proves its case beyond a reasonable doubt. Is there evidence that supports his innocence? Does he have defenses that compel a jury to exonerate him from the charges?

Admittedly, the prosecutor prevails more often than not, and the PD is alongside the defendant, now adjudicated guilty, to mitigate the damage at a sentencing hearing. My husband likens these situations to “a controlled crash landing of a burning aircraft.” It should not seem entirely odd that people who use drugs and/or commit other crimes tend to be self-destructive.

Trials are actually fairly exceptional in real life. Generally, the defendant agrees to a guilty plea, the PD and the prosecutor work out deals, and the judge accepts the plea bargain. The defendant receives a lower jail sentence, or goes to drug treatment, or does some sort of community service for pleading guilty instead of going to trial.

The right to counsel inheres in the Sixth Amendment to the United States Constitution. The right to have assigned counsel provided was guaranteed in the United States Supreme Court decision Gideon v. Wainwright, 372 U.S. 335 (1963), in which the Court found that counsel must be provided to indigent defendants in all felony cases.


1 Comment

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One response to “some points concerning presumed guilt

  1. Jane

    Well said!


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