THE ROLE OF A CRIMINAL DEFENSE LAWYER
I often get different variations of the question, “how can you defend someone you know is guilty?” The answer is: because every person is entitled to a lawyer in criminal proceedings. The U.S. Constitution requires that the government prove every element of a criminal charge beyond a reasonable doubt. Whether I know a person is guilty or whether I think a person is guilty doesn’t matter. If the prosecutor’s allegations are just accepted as the truth without any challenges or scrutiny, people could easily be prosecuted arbitrarily, which would lead to the wrongful conviction of many innocent people. In a criminal trial, the defense lawyer forces the prosecution to prove its case. If the prosecution cannot prove what it is alleging, the defendant should not be convicted of the offense; it would be unconstitutional. Bottom line.
People often falsely assume that the main job of a defense lawyer is “to get people off.” This is simply not true. Of course, there are many instances in which the case does go to trial and the defense is seeking a verdict of not guilty on all charges and allegations, but that is not the typical criminal case. A defense lawyer’s job is to protect a defendant’s constitutional rights and prevent the government from trampling on them. Most criminal cases, especially misdemeanors, do not go to trial. A criminal defense lawyer can stop the prosecutor from charging crimes that it just can’t prove or charging crimes that did not even occur, thereby getting the charge reduced to a lesser offense that is appropriate for the alleged conduct.
Take a burglary charge for example. Burglary is the unlawful or unauthorized entering of a building with the INTENT to commit a crime inside the building. If a person merely enters a building for shelter without permission and no intent to commit any crimes inside the building, that person should not be convicted of burglary. The lesser charge would be criminal trespass, which is merely the unlawful entering of a building. In this situation, the criminal defense lawyer can point out the missing elements of the prosecution’s case and negotiate to get the charge dropped from burglary, a felony, to criminal trespass, which is a misdemeanor. Even at trial, the defense lawyer can tell the jury that there are missing parts of the prosecution’s case. The lawyer does not always dispute every fact presented or claim that the defendant is 100% innocent of any wrongdoing. In many cases, the lawyer asks the jury to find that a lesser offense has been committed.
Another way in which a lawyer can protect a person's constitutional rights and stop the prosecutor from overcharging is to raise a double jeopardy argument. The Fifth Amendment of the U.S. Constitution says that no person should be twice put in jeopardy in a criminal case. What this means is that the prosecutor cannot try to charge someone again with a crime after the person has been found to be not guilty by a judge or jury. It also means that the prosecutor cannot charge a person with two separate crimes based on the same conduct.
What exactly does that mean? Well, take a look at robbery. Robbery is essentially theft by force or threat of force. If a person knocks someone down and takes their wallet, it would be a robbery. The prosecutor may want to also charge the defendant with assault for knocking the victim down. A defense lawyer should argue that charging the person twice (robbery and assault) is unconstitutional because the conduct that gave rise to the assault charge is the exact same conduct that gave rise to the robbery charge. I have raised double jeopardy arguments on appeal in cases like these and the State is forced to admit that they have charged a person twice for a single act. In these cases, where the public defender should have raised the issue at trial, I have appealed them to get one of the two charges vacated. That's not to say that the defendant walks away with no charges whatsoever, but I have stopped the State from stacking two felonies up against a person for committing just one single act.
Another job lawyers have is to make sure that the defendant receives a fair sentence. For instance, a DUI is a gross misdemeanor in Washington and is punishable up to a year in jail. There is a mandatory minimum sentence of 24 consecutive hours in jail for a DUI if it is your first offense and your blood alcohol level (BAC) is below .15. If it is above .15, there is a mandatory minimum sentence of 48 consecutive hours in jail. These minimum sentences are MANDATORY. The judge has no room to give you less time if you are convicted of DUI. But as I wrote above, judges can give you up to a year in jail for your first DUI if they want to. This is where the lawyer acts as your advocate to point out any mitigating circumstances and convince the prosecutor to recommend a sentence that is fair and appropriate.
Defense lawyers work with clients to achieve certain goals. Some defendants are not concerned about a criminal conviction, but want to perserve their right to possess a firearm. If you're in the military, a domestic violence conviction, a charge that could result in you losing your Second Amendment rights, can destroy your career because you will not be allowed to do your job, which requires you to possess a firearm. A defense lawyer will strive to work something out with the prosecutor so that you may keep your job in the military. Some clients may be most concerned with perserving their ability to drive. Some may be trying to avoid jail in order to keep their job and support their families. A defense lawyer takes all of these needs into conbsideration in working with the prosecutor to achieve the client's objectives. There are many alternatives to a regular jail senetence such as probation, electronic home monitoring, or work furlough. A defense lawyer can make arrangements that require a client to report to jail only on the weekends so they can keep their job during the week and support their families.
In Washington State, we have something called a Stipulated Order of Continuance (SOC). An SOC is essentially a contract between the client and the prosecutor that says that the client will comply with certain conditions for a specified period of time. After that specified period of time has expired, the case is dismissed. A defense lawyer advocates on your behalf to convince the prosecutor that an SOC is appropriate in your case.
In conclusion, the role of a defense lawyer is not just "getting people off." The role is to protect the client's constitutional rights and minimize the damage that a criminal charge can do to a person's life. The defense lawyer makes sure that the prosecutor has sufficient grounds for making certain allegations against you and makes sure that the prosecutor is not overcharging you or alleging things they just can't prove. The defense lawyer makes sure you are being treated fairly and the disruption to your life is minimal. The main role of a defense lawyer is to be your ADVOCATE. This means many things beyond "getting people off." As a criminal defense lawyer, I do everything within my power to achieve the best possible outcome for my clients. If the best possible outcome is a dismissal or a verdict of not guilty, then that is what I will work towards. The client ulimately has the final say in the matter; the lawyer is your advocate who speaks on your behalf to protect you and to achieve your goals. If you have questions about a criminal matter, you can contact me by visiting www.jegattorney.com.
