What It’s Like Defending ‘The Guilty’: Thoughts From a Criminal Defense Attorney

I used to love to go to parties. Sadly, that all changed once I became a criminal defense attorney. Below is the conversation that I have at every shindig that I’ve attended over the last 10 or so years.

* * *

“So, what do you do for a living?”

“I’m an attorney.”

(Invariably dollar signs flash in my new acquaintance’s eyes, despite the fact that I’m clearly wearing a suit unfit for a rack in Building 19.)

“Really. What type of law do you practice?”

“Criminal defense.”

(It’s always at that point that I wished I had employed that quintessential lawyering skill — lying. All I have to say is “bankruptcy law” and the topic changes.) “Huh. So do you try to put people in jail or keep them out?”

“I try to keep them out.”

(I then strenuously suppress the urge to say: “As was obvious when I said criminal defense.”)

“Have you ever represented someone who you thought might be guilty?”

“I honestly can’t remember the last time I represented someone who I thought was innocent.”

“What?”

(Here we go.)

“You represent people even though you know they are guilty?”

“Every day.”

“You try to get them off?”

“Well, not sexually.”

“What if you win and your client goes out and commits the same crime again? Wouldn’t you feel awful?”

“Hey, recidivism pays the bills.”

“You kidding?”

“Yes, I’m kidding. I actually represent only poor people.”

“Why?”

“A number of reasons. My father claims I discriminate against the rich.”

“So you’re a public defender?”

“Sort of. My actual title is ‘bar advocate.’”

“Huh?”

“It means I defend patrons of the Cactus Club and Vox.”

“You what?”

“Actually, it’s a ridiculous title — it basically mans I’m court- appointed.”

“Oh, I thought those were the worst attorneys.”

(And then I wait for the inevitable … ) “No offense.”

“Trust me, you’re not the only one who has that misconception. But the fact is, some of the best attorneys in the state are court-appointed.”

“Really? Do they get to handle big cases like murders?”

“Sure.”

“Have you ever represented anyone charged with murder?”

“A couple times. Right now I’ve got a guy charged with attempted murder.”

“Why didn’t they charge him with murder?”

“Well, I’m not sure, but my best guess is because the victim didn’t die. That’s sort of a prerequisite for murder. I try to tell my clients, ‘Make sure you finish the person off. That way there’s no witness.’”

“Really?”

“No, not really.”

“But you actually try to convince a jury that a guy who has killed is innocent?”

“Well, now I do appeals, so a jury has already found my client guilty. I then try to convince a higher court to overturn the conviction based on something that happened during the trial that shouldn’t have.”

“So, you try to get them off on technicalities?”

“Otherwise known as constitutional protections.”

“Tomato; to-mah-to.”

“More like tomato; garbanzo.”

“Wait a minute. Tomatoes aren’t the same as garbanzos.”

“Exactly.”

“I just don’t see how you can represent these people. I mean, what if someone killed one of your relatives? How would you feel about that?”

“That depends. Are you throwing in-laws into the mix?”

“I mean if  …”

“Hang on a second. How about I ask a question here? What if you committed a crime? Wouldn’t you want to be represented as best as possible?”

“I’m not a criminal so that would never happen.”

“Ever get pulled over for speeding?”

“Sure, but that doesn’t make me a criminal.”

“Well, if you were going really fast, that could have been reckless endangerment. And if you hit someone, that could have been vehicular homicide.”

“But I didn’t.”

“So, it’s not that you’re not a criminal; it’s that you’re lucky.”

“What?”

“Now, did you pay those speeding tickets that you got?”

“Didn’t have to. I got them thrown out. A buddy of mine knows someone at the RMV.”

“But you were actually guilty of speeding.”

“Yeah, but that’s not a big deal. Your clients do horrible things. Don’t you think representing them is immoral?”

(Pause.)

“Sorry, I was just waiting for you to follow that up with ‘no offense.’ To answer your question: No, I don’t find it immoral. In fact, I think representing indigent criminal defendants is paradoxically the most moral thing an attorney can do.”

“Wait a minute. You’re trying to say that representing these scumballs is moral?”

“Unquestionably. There are a number of sociological reasons and there’s the need to keep power in check. There’s also the principle that for every guilty person not defended properly, precedent can be set that might lead to an innocent person going to jail. But the reason that I represent these ‘scumballs,’ as you call them, is simply because everyone’s a scumball — some people just have nicer clothes.”

“Huh?”

(Wait for it … )

“Hey! I have nice clothes.”

“Exactly.” 

David J. Barend is a criminal defense lawyer in North Attleboro. Hecan be reached at dbarend@comcast.net.

Photo by gemsling, via Flickr. Some rights reserved.