Saturday, October 04, 2008

Criminal Defense: Some of our clients are criminals

A few years ago I did a post about representing innocent clients in criminal defense cases.

The other day I spoke to the Pre-Law Association at U Albany. One of the stories I told them (which I'll go into another day) involved the most criminal client I've ever represented. This guy was the opposite of innocent.

Sometimes we represent innocent clients. They really didn't do anything wrong. It happens, and more than I would have thought. The police make a lot of mistakes, and quite a few people who are arrested really are innocent. The innocent client stands out from all other clients in one key way. Guilty clients want to know what kind of deal we can get for them. It's one of the first questions they ask. Innocent clients never ask that question. In my experience these are the cases most likely to be fought.

Then there's the clients who did what the police said, but they're not what I would call criminals. These are mostly good people who either had a bad day, or have a mental health problem, or did something that shouldn't be a crime. They're not deliberately trying to do something wrong. This is what criminal defense lawyers see most of the time. And we mostly get them deals.

Going up the scale, sometimes we get clients who are ... well ... criminals. They know exactly what they are doing. One example that comes to mind is the guy who was stealing from supermarkets. He had a plan for how he did it, and I'm pretty sure he'd done it before. While he was a criminal, he still had some redeeming qualities. He worked well with us. He was respectful to the Court and the police. He had a "partner" in his crime and they were loyal to each other. He understood why he had been arrested and that the consequences were fair. I'm not saying I'm inviting the guy to my house for a party or anything, but I wouldn't be afraid to see him on the street or worry that he'd hurt someone. I even think there's a good chance this experience will straighten him out. But there's also a pretty good chance he'll steal again. Just my opinion. These garden-variety criminals mostly obey the law, and mostly respect society's rules, but they sometimes break the law, do it on purpose, and are trying consciously to get away with it.

We represented another guy who had a more serious criminal history. He was charged with a fairly minor crime for most people, but because of his criminal history he got a significant prison term. This guy came from a part of American culture where going to prison is just a part of life. He was very matter of fact about it. Like the shoplifter, he was respectful to everyone in the process. He was really a pleasant fellow, and we actually liked him.

Then there's Mr. X. He was the worst. I'm pretty sure his behavior was partly influenced by a substance abuse problem, but there was something more. Much more. He did not work well with us at all. He lied and lied more. He was extremely disrespectful to everyone involved, even to the person who paid my fee.

We are all, to some extent, self-centered. I'm probably worse than average on this (people who know me well will laugh hysterically at this understatement). Mr. X was the most self-centered person I have ever met. No one else mattered at all. The world is his candy store and everything we work for is something he'll just take without asking or paying. In the wrong circumstances you better not get in his way.

With all that in mind, I'm still a criminal defense lawyer. I fought hard for him. Thanks to some problems with the police work, compounded by a massive error by one officer at one stage, we had a real chance of winning the case. And then our client did something that sank him, and he took a deal.

At sentencing, I did my best as well. There was not much to do since there was a plea agreement. But the judge had some discretion because of some things that had happened. I argued for him the very end, passionately. The client got a lengthy prison sentence according to the deal. I didn't say what I really thought. The sentence wasn't long enough. I wouldn't want this guy to ever get out.

His crime was nowhere near what might get someone a death sentence in the US, but the experience gave me a new perspective. I am personally opposed to the death penalty in its current form. In the past I was opposed to it completely.

The problem with the death penalty is that the criminal process is not trustworthy. We will execute some innocent people. Police make mistakes, and yes, some will lie to get a conviction. I don't think it should be about the individual offense.

The death penalty (if we're going to have one at all) should be about the defendant. When a defendant has crossed a certain threshold, say three serious felony convictions, then maybe that should open the door to the death penalty. The defendant would be examined by expert witnesses both for the prosecution and the defense. Each side makes an assessment about him - there's probably a better way of phrasing this, but the standard would be: "Is this guy ever going to be worth a shit." Okay, maybe in nicer terms: "Is there any hope that this defendant will ever be a productive and honest member of society." Let a jury of twelve decide that one.


Christian deFrancqueville said...

After reading this post I realized that I am more against the death penalty than I ever have been in my life. No matter how despicable a human may be, we become as despicable when we choose to kill other humans, for any reason. Not killing other members of our society defines our humanity and distinguishes a human from an animal. And violence begets violence. I know, I'm a bleeding heart, I can't help it.

I found your comment about whether or not a person can be a productive
member of society or worth a shit rather harsh. What makes a human
"productive" is subjective. Hitler decided that Jews were not productive. Its kind of a scary premise.

Finally, what made you reverse your position on the death penalty?

Unknown said...

I'm still against the death penalty as it currently stands. And I think the term "penalty" isn't good either.

The problem is that there are some really bad people in this world. Putting them in prison does reduce the harm they can do, but it still exposes other inmates and the guards to them.

I'll do a further blog post on this at some point.

dudleysharp said...


Morally, it is difficult to understand your comment: "No matter how despicable a human may be, we become as despicable when we choose to kill other humans, for any reason."

Reply: How is that possible? When we executed guilty Nazis for slaughtering 12 million innocents, amongst other things, how did we become just as they were? If we punish kidnappers by incarceration, do we become just like them?

Violence does not beget violence, always. Sometimes it stops violence, sometimes it produces more violence.

And, regarding the Albany Lawyer's risk to innocents with the death penalty, the reality is that innocents are at risk without the death penalty.