This is the second installment of a four-part look at what I perceive to be the stances taken by defense counsel in criminal cases.
As a reminder, 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."
Today, I'll write about the second one:
"I'm not saying my client is innocent, I'm saying you can't prove he's guilty."
This defense can arise in multiple ways, of course, but three that immediately spring to mind are:
-- DWI cases, where the defendant has refused to do any tests and there is no blood or breath evidence.
-- assault cases, where the complaining witness/victim no longer wants to testify or has changed his/her story.
-- drug cases, where the drugs were not found on the defendant but nearby, and others may have had access to the area.
My initial response to this defensive posture depends on how the "I'm-not-saying-my-client-is-innocent,-I'm-saying-you-can't-prove-he's-guilty" defense is presented. If accompanied by a smug grin and a sneer, I immediately (a) take a deep breath and remind myself to act like a professional, and (b) assume he's probably right.
This might be one of the harder parts of my job, looking at a case that has less-than-perfect evidence, and deciding what a jury might do with it. Taking each of the above examples, here are some options:
DWI case, where the defendant has refused to do any tests and there is no blood or breath evidence:
I will, quite likely, have a video from the patrol car. If the defendant looks/acts/sounds drunk on the video, I usually remain pretty confident. After all, the law allows me to argue to a jury that we have no field tests or blood/breath because the defendant declined to provide them. "And why," I can say in my most insinuating tone, "do you think he would refuse to provide evidence as to his innocence? Because he's guilty!" I think someone stumbling and slurring on video is very persuasive, and juries don't hesitate to convict when they can see for themselves the state the defendant was in.
Of course, if there's no in-car video then my view changes dramatically...
assault cases, where the complaining witness/victim no longer wants to testify or has changed his/her story:
This is tough, because we've all heard of Battered Women's Syndrome, and we see it time and again where a person repeatedly assaults the same person, and repeatedly gets their case dismissed or reduced. It can very frustrating but, as I don't do many family violence cases, I am lucky in that I don't have to make those calls often.
The thing we can do, that I always do, is make sure the victim really doesn't want to proceed, by getting our victim counselors to talk to them. If that is the case we try to get them help in other ways, in the form of counseling, for example. I should also point out that, even when the victim is unwilling, we can and will prosecute cases where we believe the evidence is strong, and the defendant needs to be held accountable. While victim input is crucial to all cases, not just assaults, we as prosecutors make the final call on the disposition of a case.
drug cases, where the drugs were not found on the defendant but nearby, and others may have had access to the area.
Here, I'll look at who owned the car or apartment that the drugs were found in. The defendant? Okay, then I imagine making a "common sense" argument to the jury, asking them if it's reasonable to think the defendant had no knowledge of the drugs in his dresser drawer, even though he has a roommate and was not in the apartment when it was searched. Sometimes evidence can seem weak or flawed, but when you apply the "oh-come-on,-you-think-a-jury-will-buy-that?' test, opinions change.
These are all judgment calls and, almost always, we discuss these cases in depth with defense counsel and our colleagues to get their input. And if this particular defense is presented smugly, we might just discuss them in more depth with colleagues than defense counsel...