Wednesday, August 18, 2010

What says the defense? (Part I)

I thought I would do a series of four entries on what I perceive as the stances taken by defense counsel in cases. I'd love some input from them (Donald, Jamie, I'm talking to you) to comment on what I have, and what I'm missing. Roughly speaking, here they are:

1. My client is innocent.
2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.
3. Maybe my client is guilty, but he has good reasons for what he did.
4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

I'll address each in separate posts, giving some examples and some typical responses from me. Today, we'll take it from the top:

"My client is innocent."

As you might imagine, this statement is the one that gets my attention the fastest. I've said it before and I'll say it again: it's my worst nightmare to convict someone of a crime they didn't commit. So when I get an immediate and emphatic claim of innocence, not only do I scrutinize every detail of my file, I do it quickly.

Now, I start with the position that the police have better things to do than frame innocent people and fake evidence. Sure, it happens once in a blue moon but I've never had a case where I suspect that's happened and the reason you read about it in the press is that it's so rare, those cases stick out. Given that stance, when I have a police officer telling me one thing and a defendant telling me the complete opposite, I'm not going to just dismiss the case. I mean, imagine if all a suspect had to do to escape felony charges is say, "I didn't do it, the cop is lying."

What this means in practice is cooperation from the defense, both the lawyer and the defendant. I usually don't expect a defendant's lawyer to share anything with me at all, not his witnesses, not his theory of the case, nothing. BUT, if his client is claiming innocence I will want to put my evidence before him and see what he has to say.

For example, let's imagine I have an arson case in which the defendant had a grudge against a business, threatened to burn it down, the business burned down that night, and the next day the defendant is in hospital with burns on his hands and arms. He was also caught on surveillance camera at the scene, running from the flames.

Looks pretty guilty, right?

But his lawyer might tell me: "He made the threats, sure, but they were made to get money from the owner, who owed him. It was the building owner who set fire to the place and I have a witness who'll say the owner told him, 'I'll frame that SOB and keep the insurance money.' The owner called my client to come over, started the fire, and my client actually tried to put it out, knowing he'd be a suspect. Hence the burns. He swears up and down he didn't do it."

A plausible story. But I'll want corroboration - so I'll ask for the defendant's cell phone records to show the call. Maybe proof of the debt. Then have the detective go talk to the owner, find out where he was exactly that night, and get his phone records too. And, of course, talk to the witness who heard the owner admit his evil scheme.

None of that could be done without me working with the defendant's lawyer, sharing information in what's normally a one-way street.

So, a claim of innocence: the most serious, challenging, and concerning defense someone can make? Probably. But sometimes the easiest to resolve, too.

Check back for:

"I'm not saying my client is innocent, I'm saying you can't prove he's guilty."


  1. In my experience, these are rare. Move on. LOL

    Seriously, as a criminal defense lawyer who also represents a police association, I am in a rather unique position to know first-hand that (1) police officers very rarely lie, and that (2) police officers sometimes lie.

    In any discussion of claims of actual innocence, we should immediately carve out and summarily dismiss some of the most popular innocence claims, my favorite of which is "they weren't my drugs." Four people in the car, and the drugs didn't belong to any of them. Sure, let's pick a jury and give 'em THAT theory.

    I'm reminded here of one of my all-time-favorite movies about the law, an obscure made-for-TV movie from the 1980s called "Criminal Law" starring Forrest Whitaker. In one scene, an ADA in the grand jury division is on a courthouse hallway pay phone calling his office. He's cradling the phone on his shoulder and juggling about fifty case files in his hands when he says into the phone, in a parody of the opening line of "The Naked City" which was on TV back in the '50s and early '60s, "there are eight million people in the Naked City, and two stories."

  2. Here was the BEST one I've heard: Regarding his client, who was caught with cocaine in her bra, the defense attorney tells us, "She said she bought a used bra and turned out it had cocaine left in it." After we laughed ourselves silly, we proceeded with the case...


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