When You’re Facing Tough Times…
Real Help That Makes A Difference

Questions, Questions!

People have been asking questions about the last few posts, and, of course, I can’t resist replying.

The first thing I heard were questions about how I represent people when I “know” they are guilty. The answer to that is both simple and complex, as usual.

The simple answer is that I make a point of not knowing if they are guilty. The complex answer takes a bit more explanation (see below).

A young lawyer said that clearly Slager was guilty, so what was my point? Fair enough. However, I have been doing this longer than this lawyer has been alive, even if he is in his thirties. Age and experience give you a certain perspective, which helps me answer both questions.


A doctor friend of mine likes to say that what people need is a young doctor (because they know all the latest and greatest techniques) and an old lawyer (because they can use their wealth of experience to help them know what to do in any given situation).

My friend is no youngster so I take what he says to heart. And I agree with him. The more you see as a criminal defense lawyer the more you know.

I can’t speak for doctors.

I know, for example, that I don’t know if someone is guilty just based on a small snippet of evidence, however compelling it may be. Much more importantly, I know that my job is not to worry about whether someone is guilty.

My job is to look very closely and critically at the evidence with a completely open mind and see if there is any reasonable possibility that the State’s theory is wrong. I don’t have to show that there is another probable alternative, only that there might be a reasonable possible alternative interpretation of the facts.  

The experience comes into play when you try to figure out how to do that, but it begins and ends with an open mind – something sorely lacking these days, given the tsunami of unsolicited opinions (like mine) that wash over our brains every day. Here’s how it works.

First, you do everything ethically possible to limit the information, or evidence, that is being used against your client. There are two main ways to do that:

  • One is to refute its accuracy.
  • The other is to suppress it because some constitutional right was violated.

This latter approach is often referred to as a technicality.

I personally don’t think that Constitutional Protections are technicalities. I think they are the fundamental cornerstones of our way of life, which I why I do the best I can to make sure that they are not trampled on in court. Or outside court. As in when someone thinks they know whether someone is guilty beyond a reasonable doubt without ever seeing all of the evidence and without first trying to think of every possible reasonable alternative explanation.

In Slager’s case that would mean considering whether believing that a suspect was running away with a loaded weapon that they had just grabbed out of your hand was enough of a reason to shoot them as they ran away.

Perhaps the answer is no. Perhaps it is yes if it was a handgun, but no if it was a Taser. Or perhaps it is yes in both scenarios.

But perhaps it is not up to me. Perhaps the Founders were right when they followed the ancient directives of the Magna Carta and wrote the right to a jury trial into the Constitution. Maybe it’ s just me that cares about this stuff.

I sure hope not.

Now, back to “how do you approach a case with seemingly overwhelming evidence”. Years ago I ran the CLE Committee for the Washington Defender Association with my friend Roy Howson. We taught young public defenders how to do their impossible jobs. Well, we tried to at least.

I came up with the idea that we had to show things as they really are. Public defenders have to take any case that winds up in their in boxes – they don’t really have a choice. That is why it is such great training for trial lawyers. In addition, public defense clients are not paying by the hour. They can make incredibly unreasonable demands, especially when they are caught red handed with a mountain of incriminating evidence.

They might be caught on tape, have ten eye witnesses to the crime, have fingerprints and DNA all over the crime scene, and have written out a signed detailed confession. And you may not like them.

So what? If they want a jury trial you have to give them one, and since their lives are in your hands you better darn well give them a good one. The best, fairest most zealous defense you can find, or create, with the facts as they will come out at trial. No more, no less.

And on the issue of whether you like them, what kind of world would it be if whether or not you got a fair trial depended on whether or not your lawyer liked you? I know, for example, that one of the people I talked with about these posts likes Burning Man.  What if I thought Burning Man was for a bunch of stoned losers? (I don’t, but still. I might.)

Would it be OK for me to just do a so-so job for this client because of how I feel? I hope everyone agrees that the answer is NO. The same goes for whether or not I think they are guilty.

The CLE (Continuing Legal Education Seminar) went off without a hitch. We had called it “Winning the Losers” and invited a bunch of experienced criminal defense lawyers to come talk. Speaker after speaker shared their great tips on ways to use the evidence you were stuck with to make the arguments you needed to win.

But, something interesting happened as the day evolved. Every speaker had a different take on things. In fact, at one point a speaker criticized the perspective of a prior speaker to the point that I was afraid we might have a crime scene on our hands right then and there.

So, there can be disagreement on how to approach defense work, even amongst those of us who have done it for years – as there should be.

In the example above, let’s say it’s a Murder One case. The tape might be from a misleading angle or be hard to see clearly, as they so often are. The witnesses might not know that two minutes before the murder the decedent had threatened my client’s life. The DNA and fingerprints might be there because they were friends and over at each other’s houses all the time. The confession might have been coerced or fabricated.

Or, if it is really tough, you simply make sure that the Coroner’s Report containing the homicide finding is marked DEFENSE EXHIBIT ONE, by arriving early before court at the start of the trial and having the clerk mark your exhibit first. Then throughout the course of the trial it is referred to as “DEFENSE EXHIBIT ONE!”

Never know. Worth a shot. And it represents the extreme outer edge of using the evidence you have to create doubt. It also led to a lot of disagreement among our panel of experts.

So, what about Officer Slager? I just don’t know. I’m even a bit confused by Hernandez, the football player with the Patriots, and he was just found guilty of murder. However, just because I am a devout Seahawks fan does that mean I would not have tried my best to win his case at trial?

Of course not. Otherwise what good would I be? And more importantly, what good would our vaunted criminal justice system be, the apple of the world’s legal eyes?

Not much.