Chapter 4: Are There Cases or Clients You Won't Take?

— -- One of the advantages of being a private criminal defense lawyer is that you don't have to take everyone's case. I am frequently asked what cases I turn down. For some reason, everyone expects me to say that I won't represent clients if I know or believe that they may be guilty. There is a word for lawyers who go by that standard; they are called "poor". There are exceptions to my observation, but very few. In fact, I am pretty sure there is only one: Barry Scheck. Having established the Innocence Project in New York and elsewhere, he has been responsible for the often very late and heart-wrenching correction of some incredible miscarriages of justice throughout the country. He has earned the right to draw such a difficult line in the sand in our profession.

So how can the rest of us actually champion the cases of clients we believe to be guilty? There is a substantial percentage of the population that believes we are as evil, or perhaps more evil, than our clients for not letting this question bother us. They chalk it up to some rationalization on our part to make money by prostituting our sense of values. It is kind of like a permutation of one of my favorite lawyer jokes:

Question: How much is two and two?

Lawyer: How much do you need it to be?

Our perception, guess or actual knowledge of our client's guilt is generally a non-issue. How can this be? Shocking as it may sound, we generally believe everyone hires us is probably guilty of something. That's why they need us! Their apparent guilt is hardly ever a factor in determining whether we want to represent them or not. As discussed in the first chapter of this book, we are often not the best judges of our client's guilt or innocence and we have no business setting ourselves up as their judge and jury. Our job is to defend them within the bounds of the law and rules of the court. End of discussion.

So whose cases do we reject? Why don't we defend everyone and anyone?

Believe it or not, most criminal defense lawyers are people too. We generally are capable of being subjected to the same emotional reactions to various events and circumstances that real people experience. If a client is charged with brutally raping a young child, the mere thought of the act is so upsetting to me that I just don't want to deal with it. I don't want to cross-examine the child and beat up on him/her if she stumbles on the stand. Clearly, the accused deserves a good defense but he would not be getting it from me if I were being too emotionally moved by the allegations of the crime itself. It is my fallibility and (gulp) sensitivity and not my client's possible culpability, which prompts me to pass on the case.

Oddly enough, I don't have any such problems dealing with murders or other violent crimes. I can't rationally explain this obvious inconsistency but over the years I have come to know what I feel comfortable doing and what not. I have come to learn that many of us have set up our own little personal boundaries.