I have never really counted. I have probably done in excess of a thousand municipal court cases. As a Public Defender, Prosecutor, and Judge, and as a defense attorney, I could not even begin to count. After thirty years, I now do predominantly criminal work and DWIs as a defense attorney for the last sixteen years. In addition, there is the sheer volume of cases when I was a judge; probably 60-70,000 municipal court cases crossed my bench when I was a judge, so I could not even begin to tell you.
Do People Ever Ask You How You Can Defend Criminals?
Yes, of course they ask me how I can defend criminals. They ask because they are naive, unless of course they are the ones accused. I always tell them the same thing. You have the mistaken idea that the defendant is on trial. In fact, when I teach other lawyers, I say do not ever think your client is guilty. If you are hung up, on whether your client is guilty or not, you should not take the case. The issue is not what your client did; it is what the state can prove. That is the essence of our constitutional presumption of innocence.
The way I look and the way I explain it to lay people, is that they are mistaken to think the defendant is on trial. The State is on trial! The State has to prove their burden beyond a reasonable doubt in each case, because if we do not hold them to their proofs, even if you think someone is obviously guilty, then they start thinking like the rest of us. They used to do this in the old Soviet Union, and decided they are going to charge us with offenses without ever having to prove them and our Constitution will not allow that.
I look at it like the state is on trial each and every time, not the defendant. It is not what the defendant did; it is what the State can prove.
How Many Of The People That You Represent Are “Hardened Criminals?”
Overwhelmingly, it is first-time offenders, with some exceptions, not so many hardened criminals. People that have issues with drugs tend to be recidivists, we see that happen more often. Sometimes good people do bad things. Sometimes bad people do things that are consistently bad, but more often than not, they are good people who made a poor choice.
Sometimes, there is a fine line between being foolish and criminal intent and most of the time, intent is proven by circumstantial evidence. The police and a prosecutor, think it may look like criminal intent, when really they just did something that was not well thought out. Those are the cases that I enjoy the most, because I feel as if they did something improvident, (like we all have from time to time), and I have an opportunity to convince the state that it is what it was: for want of a better word, maybe stupidity, but not criminality.
Do People Think That Their Good Character Can Be A Mitigating Circumstance Or A Defense In A Criminal Case?
For first offenders, they think moral character will help them through a case, and get off with an easier charge. “I’ve never done anything bad before in my life.” Most murderers only do it once, so that is obviously not a defense. I am sympathetic as to the how the trouble they are in will affect their lives. I do things to try, and make them comfortable. I listen to how they think things are going to change their lives, but unfortunately, the decision as to whether or not their life is going to be affected does not mitigate what they did, or did not do.
It may mitigate the punishment, but if you embezzle $50,000 from your employer, they have you cold, and you come in and say, “Geez, I’m a really good person and I don’t know why I did this. I never did anything like this in my life before.” Maybe that mitigates what punishment you are going to receive, but it does not negate the crime itself.
Why are they going after you? The answer is a legal one. They do not have to go after everybody. They just have to catch lawbreakers one at a time, so why are they going after you, unless it has a discriminatory basis, makes no difference whatsoever. They are going after you, because they see fit to do so. Throughout history, some crimes are always prosecuted more severely than others.
For instance, in my career, any offenses against children have been prosecuted much more rigorously than in other areas. Offenses against women have been prosecuted more rigorously than maybe fifty years ago. Every prosecutor gets to set their tone. For years and years, the punishment was worse for people in poor neighborhoods who were charged with drugs, than people in suburbia that snorted cocaine. That does not make any sense. It is clearly discriminatory. Much of this has changed, but the law evolves over time. I always say we have the finest justice system in the world, quickly followed by saying that it is not perfect.
Can Good Character Or Clean Prior Record Be Used As A Defense In A Criminal Case?
Sometimes there is a fine line between criminal intent, and making a poor judgment. If they are truly a good person, sometimes that will sway a prosecutor about whether there was criminal intent or not. Sometimes, people obviously had criminal intent in mind. Sometimes, they even announce it. “I’m going to go kill Charlie.” There is no doubt, if he goes to kill Charlie, what his intent was. Other times, it is not so cut and dry. Their background plays into it as well. Many times, their mental health will be questioned.
When I see people under extreme stress, or tough circumstances, I will sometimes recommend that we have a forensic psychiatric do an evaluation if I think that is a component in convincing the prosecutor that maybe the intent was not there, or maybe the punishment should not be so harsh. I have had very good success with forensic evaluations. I do not use this in many cases, but I do in cases where I believe it will help. The same thing goes for retaining expert witnesses. Most of the time, intent is proved circumstantially, and the mindset of the defendant is a big portion of that.
When I teach, and when I practice this approach, I always say that your job as a defense attorney is to make your client as a living, breathing person to the prosecutor, and judge. If it goes to trial, it is not just a file they are a living breathing person. What are they about? What did they do? What have they suffered? What have they accomplished? You have to make them seem just like a family member. It is easier to convict somebody if you do not understand who he or she is, and much harder if you understand them as a person, and they really are a good person.
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