Chapter 2: How Can You Defend Somone When You Know They Are Guilty?

We defense lawyers might as well be wearing kick me signs on our backs. People cannot wait to ask us this question. I sometimes think they expect us to respond with a tearful, "You're right? what the hell was I thinking?" What is always amazing to me is the transformation that people can undergo, suddenly changing from outraged or offended by what we do for a living, to supportive and understanding. This metamorphosis generally occurs precisely ten minutes after their son or daughter gets arrested. Then, they call to tell us of the gross injustice that has been perpetuated by some idiot cop who refused to believe that "some black guy" threw a bag of marijuana in their son's BMW after he took a wrong turn and was cruising near a housing project? But in any event, the question deserves to be answered.

Here's the first problem. How do I know? Okay, sometimes the client does come in and say, "I did it! I did exactly what they say I did, and I have no real defense!" This is rare, but it does happen. I will deal with that later in this chapter. Let's call those people the Really Guilty Clients. I have had clients who have been charged with crimes ranging from murder, rape, and robbery to stealing toothpaste from the A & P. Many of them have admitted to having committed the very offense for which they have been charged. They have told me that the police, eyewitness, or victim's account of their conduct is precisely correct. This is not the most common situation, but it does happen quite often. The knowledge that my client is 100 percent guilty neither offends nor shocks me. That is just the nature of this business. People do stupid or bad things. People like me are there to clean up the mess, or at least, to do our best to minimize how their conduct will impact the rest of their life.

This doesn't mean we will set out to commit some great fraud against the court, or encourage our client or his friends to lie about what may have happened. My absolute knowledge of the client's guilt merely limits our options. We cannot put the client on the witness stand and allow him or anyone else to lie about the situation. Aside from that, we can do everything possible to either win an acquittal by reason of the State's failure to prove their case, or work out some other pleas bargain which might prove tot be a far better result for the client that he would have faced should he have gone to trial and lost.

The tough part is to get the client to actually open up and tell me the real story as soon as possible. Sometimes I have to act a bit like a poor man's version of Kojak to get the real story. Lying is sometimes useful. "Look, Frank, the prosecutor told me he has video of you leaving the apartment house at three A.MA. How do we explain that?" And bingo- out comes the real story. Alter, I can tell him how the prosecutor was bulls***ting me about the video. No good could really come out of letting him know it was really my bulls*** story to get him to tell me the real deal.

Oddly enough, the more educated, sophisticated, and affluent a client is, the less likely he is to give me the real story. Go figure. Over the years I have found that the most effective way to find out what really happened with the clients is not to ask him, "What happened?", but rather, to ask him, "What do they (those imbeciles who arrested him) say happened?" As often as not, when I ask the client why he has been arrested, he will basically tell me that the police must have picked his name out of the phone book because they were having a slow day! Well, not in those exact words, but the responses are often as ridiculous. When I phrase the question in terms of not what he did, but rather what those idiots say he did or what his wife/girlfriend/miscellaneous victim says that he did, then real story generally comes out.