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.

I asked around.

Ron Kuby, often hailed as one of the real true believers in the criminal defense business represented Colin Ferguson, the maniac who murdered 11 people one day on the Long Island Railroad. He also vigorously defended Sheikh Omar Abdel-Rahman, convicted of masterminding the first World Trade Center bombing. If he could fight like hell for those two dirt bags, he obviously has no such restrictions about whom he takes on, right? WRONG! I asked Ron the question. Who do you turn down? And he said he will not represent anyone who has committed a crime based on racial or ethnic motivations.

Jeralyn Merritt of Denver was one of the trial attorneys representing Oklahoma City bomber, Timothy McVeigh. She fought hard to save his life during and after the trial. McVeigh, having never showed an iota of remorse, was found responsible for the deaths of all those unfortunate souls in the Federal Building in Oklahoma City including 28 small children in the daycare facility, which he knew was in operation when he blew the building up. Jeralyn worked closely with McVeigh and worked tireless for him. But she won't represent someone who is accused of abusing the elderly.

We all have our lines in the sand. They don't necessarily make a lot of sense to the rest of the world, but they seem to work for us.

Bob Bello of Connecticut is one of the best criminal defense lawyers I know. He has represented many people for murder, robbery, rape, etc. He also is the first one to step up to the plate when a friend or coworker in the system needs help. Without asking for a fee, a thank you or any recognition at all, Bob has been there to take care of the court reporter, bailiff, clerk or lawyer when they wound up as a defendant. What cases will he not take? He will not represent parents who sexually molest their children. He will represent strangers who sexually molest children, but not parents.

Gerald Shargel is high up on the short list of New York City criminal Lawyers who are the absolute "go-to" guys if you are in deep doodoo. He won an acquittal for John Gotti who had been accused of ordering the murder of a union labor official. He has represented mob guys, white collar people as well as the street guys. His response to my question:

"I don't exclude any category of offense. Depends on the client and the factual basis for the chare. For example, I just represented a female school principal who was charged with rape of 13 year old boys. Would I have represented a 40 year old many who raped an eight year old girl? Probably, not unless I was convinced of innocence (that holds true throughout). So, its not he crime, it's the facts."

David Chesnoff of Las Vegas represented a defendant in the largest controlled substance seizure in American History. He is nationally regarded as a brilliant trial lawyer who has taken on impossible cases and clients. As of this writing, he is representing Las Vegas headliner David Copperfield. His response:

"Since I began practicing I have not been retained to represent anyone that wants to cooperate with the government. In the vernacular, NO RATS. I have always believed that if you commit a crime you should face the music, not snitch on other people to mitigate your punishment. Hopefully, I will do my job well enough that an individual's refusal to rat will still translate to a complete trial or motion victory in the case; pr at least a successful plea negotiation. So far, after 28 years, so good."

We were knocked over by the incredible job Roy Black did when we watched him win an acquittal for William Kennedy smith in 1991 as Court TV captured it all gavel to gavel. Based in Miami, Roy also took care of Rush Limbaugh when they found those four trillion pills in his house. Who will Roy not represent?

"Bombers. Because they kill indiscriminately"

As I mentioned in an earlier chapter, we all represent people even if we think they are guilty. Whoops- not all of us. There is only one lawyer I know who will only represent truly innocent people. And he is not full of s*** - he really means it. He not only talks the talk but he walks the walk. Any lawyer who claims that he will only represent innocent people is generally bulls***ting us and fooling himself as well. That is, unless that lawyer is Barry Scheck of New York. Having created the Innocence Project at the Cardozo School of Law, Barry has saved so many people who have been wrongly convicted... One of the few of us who is truly an expert in DNA, he has been regarded as the best of the best long before OJ!

He will only represent people he truly believes are innocent.

Dick DeGuerin is legendary, even by Texas standards. Recently representing former House Majority Leader Tom Delay in his money laundering conspiracy case, Dick represented Texas cult leader David Koresh during his standoff with the FBI and the ATF. Most recently he won an amazing "Not Guilty" verdict in the case of millionaire-nutcase Robert Durst, who was accused of dismembering the body of his 71-year-old neighbor and throwing the body parts inn Galveston Bay.

Dick's response to my email was very specific:

"I don't respect snitches or hot check writers I'll be glad to expand on it, but that s the bottom line. I try to help everyone who has the good sense to ask for my help,"

What the hell is a "hot check writer?" Apparently there is a big problem in Texas with people who bounce checks or write them on closed or phony accounts. I didn't realize how big a problem it was until after I got Dick DeGuerin's response. I walked into the Amarillo, Texas Country Courthouse where I was representing someone accused of statutory rape. The first thing I was an office with a large sing above it that read HOT CHECK OFFICE.

Yale Galenter of Florida is best know as OJ Simpson's lawyer in his "road rage" trial as well as the sports memorabilia escapade in Las Vegas, I asked Yale what cases he would not take. Conventional wisdom might suggest that nay lawyer who could represent OJ has no restrictions! Not so. Yale will not represent pedophiles. His reply to me was "W have not done that type of work in 20 years. Double murder no problem. Crimes against kids- no can do."

Ben Brafman of New York City successfully represented Sean "P. Diddy" Combs in his bribery and weapons case. I watched him do his best to defend Michael Jackson, until Jackson's entourage and antics made it impossible to deal with the case effectively. He truly is at the top of the food chain in the criminal law business. I have been on several speaking panels with him, and I always feel like a total dunce after Ben explains or discussed the most technical legal issue in a manner that is bother understandable and compelling to everyone in the room. I have often said that when he clears his throat he is more articulate that I could ever hope to be. I don't know Ben that well. Yet, when I got slammed in a New York newspaper one morning a while back, there was a call from Ben at my office before 9:00 A.M., offering his wisdom and assistance if I needed it. When I was writing this chapter I e-mailed him the question at 11:16 P.M. on Sunday night. At 12:19 A.M., I received the following response:

"I have often thought about the question you pose. To me it would be a terrorist. As the son of Holocaust survivors, and with children and grandchildren living in Israel, I would be the wrong guy to represent a terrorist intent on mass murder, suicide bombing, etc. It is important that the reader understand that I believe a terrorist is entitled to a defense; it is just that I am the wrong guy for that kind of case because of who I am as a person, where I come from, and what is today, very important in my life.

I have no difficulty representing a real criminal, even a very bad person. There are degrees of evil, however, and I am not the right guy to represent someone who looks to kill because of twisted hate, as so many in my family have been murdered because of twisted hate.

I think I am a very good criminal lawyer with real talent. My fear is that I would hold back and not permit myself to do what I do best in a case where the defendant is so despised by me. Hard to explain, perhaps, but it is part of who I am. I would fight for the right of that person to get excellent representation, but would never allow that lawyer to be me.

If you wish to discuss further, give me a call at your convenience."

Like I said earlier, Ben Brafman may very well be the most articulate lawyer I know- and a class act, as well.