How Can You Represent the Guilty?

Defense attorneys hear this a lot from non-attorneys.

The answer? I don’t. I represent the innocent unless proven guilty (some say ‘innocent until proven guilty’ but I regard that as a self-fulfilling prophecy—a kind Judge Roy Bean, let’s-give-him-a-fair-trial-and-then-hang-him implication). It's a facet of our unique system of jurisprudence.

How unique is it? Well, the presumption of innocence and requirement that the State prove the Defendant guilty beyond a reasonable doubt are not actually in the United States Constitution. But here’s what the United States Supreme Court had to say about it:

“This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial . . . And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right.”

. . .

“While use of the particular phrase ‘presumption of innocence’ -- or any other form of words -- may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’”

Taylor v. Kentucky, 436 U.S. 478, 485-486 (U.S. 1978).

At some point, however, some astute critics will point out that the merits phase is over and the sentencing phase is set to begin. They ask me whether I change my mind about my clients once they have been proven or have pleaded guilty.

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The answer is that my oath to advocate zealously for my client, once I am their lawyer, forbids dilution of my commitment. What kind of a criminal justice system would we have if lawyers were allowed to abandon their clients after they had been found guilty by a jury or entered a plea of guilty pursuant to a plea agreement?

More importantly, what kind of a person would flee an obligation because it became unpopular or difficult? Morality is equal parts courage and dedication. Neither is demonstrated by the rhetorical question posed above—how can you represent the guilty? Maybe the better question is: how can I not?

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