Tuesday, August 24, 2010

What says the defense? (Part Three)

Welcome back to my four-part look at what I see as the primary stances taken by defense counsel in criminal cases.

As a refresher, 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.

The first one I covered was: "My client is innocent."

The second was: "I'm not saying my client is innocent, I'm saying you can't prove he's guilty"

And so today we have:
"Maybe my client is guilty, but he has good reasons for what he did."

The most common, and therefore best, example of this is addiction.

Drugs: "My client possessed that crack rock but he's an addict, he needs help, not punishment."

This can be an easy call if the defendant has never been arrested (or rarely). There are numerous programs to help addicts kick the habit and, like most prosecutors, I'm much, much happier sending someone to treatment than I am sending them to jail.
The problem comes when the defendant has multiple arrests, multiple convictions, and has had numerous runs at treatment. Unfortunately, and maybe it's hard to believe if you don't see it every day, but there are many people who simply don't want to give up drugs. People who, for whatever reason, would rather do a stint in jail (or even prison) that go through rehab.

DWI: "My client is an alcoholic, and now sees that she needs treatment."

I like hearing this. It can take a life-altering even (like an arrest for a soccer mom) for someone to see they have a problem, and I like it when they do see it and start to work towards addressing it. The problem is, while alcoholism may be an addiction, driving isn't. As I've heard a judge say plenty of times, "You can sit home and drink all the Budweiser you want. Just stay off the road."
I agree with this.
That said, if someone is willing to take responsibility and go for treatment, prosecutors are generally far more inclined to look at the punishment side of the case more leniently. That's just common sense, and common decency.

Evading the police:
This doesn't happen often, and I hope my colleague from the defense bar doesn't mind me sharing the example. It's just kind of amusing, and the way the lawyer told me did nothing to undermine or harm her client's position. Frankly, I appreciate honesty because if the lawyer indicates something negative about her side of the case, it means I can trust her when she tells me something positive.

This lawyer was trying to explain why her otherwise arrest-free client didn't stop when the police tried to pull him over (and I paraphrase): "He'd been knocking back martinis after work and didn't want to get arrested for DWI." Of course, from the client's perspective the logic is flawed because instead of a Class B DWI, he's now facing a state jail felony Evading charge!

Murder or aggravated assault:
Yes, believe it or not, this is the next most common offense for this line of defense. You may be able to guess its form, too: "My client shot/stabbed that person, but he did it in self-defense."

And these cases are very very hard to prove. In the example of a murder trial, usually only one of the two people who were present at the scene of the alleged crime is around to testify, and so it can be hard to refute his (and he's the defendant, of course) version of events. Even if crime scene, forensic, and other evidence point to his guilt, juries can be reluctant to convict someone of such a serious offense when they feel that maybe, perhaps, the victim was indeed trying to hurt the defendant. And given the State's high level of proof, that's as it should be, of course.

Defense lawyers, am I missing any examples for this category?


  1. Today's paper carries news of an acquittal on a murder charge in Judge Flowers' court. The victim exsanguinated from a stab wound to the leg. Apparently the jury believed that the defendant stabbed the victim, but didn't intend to kill him. I guess not all arteries are created equal. I'll have to remember this, and to keep this lawyer's telephone number handy, if I ever form the intent to kill someone.

  2. Donald seems to take a dim view of the jury that acquitted Mr. Lee. I certainly wasn't in the courtroom (and from the nature of the comment it doesn't seem like Donald was either) but there was almost certainly more evidence put on than simply "defendant only stabbed decedent in the leg so no intent to kill, therefore self defense." Even the article he references pointed out that Mr. Lee was assaulted by Talley prior to defending himself. Maybe, just maybe, the jury felt that the use of deadly force was justified given the circumstances.


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