Judge Gray: How Can You Defend Those Criminals?

The Functional Libertarian
June 20, 2013

So many times I hear the question asked: “How can defense attorneys defend those criminals – particularly if you know they are guilty?” The answer is at least four-fold.

First, and quite fundamentally, the Fifth and Fourteenth Amendments to the Constitution provide that governments cannot deprive people of life, liberty or property without the due process of law. Libertarians and other responsible people realize that due process for almost all cases is simply not attainable without defendants having capable and professional legal assistance from a competent criminal attorney.

Second, the government itself is a powerful entity. I still remember when I was a federal prosecutor hearing one defendant, when his case was called as the United States on one side and only him on the other, exclaim: “Oh my God!” He was right; that must be a truly daunting feeling.

So to balance the power of the government, it is the mandate of the criminal defense attorneys to make the system work. That does not mean that the defense attorneys must prove their clients are innocent, or even not guilty. Absolutely not! Instead it is their function simply to make the prosecutors present enough admissible evidence that will prove the guilt of the defendants beyond a doubt based upon reason to a unanimous jury of twelve citizens. If that is not done, the defendant must be acquitted. As such, we probably should allow juries to return one of three verdicts: Guilty, Not Guilty or Not Proved.

Of course, since the prosecutors can choose their battles, a large percentage of the time the cases result in a finding of guilty. But just knowing that defense attorneys will hold them to their burdens of proof normally helps to keep prosecutors from bringing charges that are inappropriate or cannot be proved. So that in itself strongly helps to make the system work.

Third, on some occasions defendants may believe that they are guilty of an offense, but under the law they actually are not. For example, they may have a legitimate self-defense argument against a charge of battery. But unless they have an attorney, they likely would not be aware of that legal and appropriate defense. Or sometimes defendants really may not have had a propensity or inclination to commit the charged violation of law, but by the actions of its agents, the government set up conditions that changed that inclination. In those circumstances the defendants could have a legitimate defense of entrapment. And other times, the defendants may actually be innocent of the charges, even though they believed otherwise.

Based upon these circumstances, you can understand why the law encourages defendants to speak openly and honestly to their defense attorneys. If that were not true, an appreciable number of defendants would be inappropriately convicted. Furthermore, if defense attorneys were ethically precluded from representing defendants who had provided them with evidence of guilt, the defendants would go down the street and find another attorney to represent them, and simply lie to the new attorney. No one wins under such circumstances.

But don’t worry, because even under this system between 85 and 90 percent of the criminal cases that are filed result in a plea of Guilty of some form. And of those that go to trial, about 80 percent result in some kind of a verdict of Guilty. Those are probably appropriate numbers, but all-the-more so because we can be assured that most of the time the system was made to work!

And fourth, laws on the books like three strikes, mandatory minimum sentences and added penalty enhancements for certain offenses give prosecutors brutally uneven bargaining power to coerce defendants into plea agreements. How so? Because the risk of spending decades in prison if they go to trial and lose is monumental. So affording even guilty defendants an attorney who is knowledgeable about the intricacies of the system, at least to a degree, offsets some of that power.

Yes, our criminal justice system is slow, expensive and cumbersome, and it certainly can be improved. But most of the time it works.

Even in those situations where the appellate courts find that the agents of the government violated some constitutional or statutory rights of a defendant, and therefore ordered that there be a new trial, most of the time the new trial still results in a conviction. That actually happened in the famous case of Ernesto Miranda after his original conviction was reversed for what has become known as “Miranda” violations regarding informing arrested defendants that they have a right not to incriminate themselves. He was convicted anyway.

Winston Churchill, among several others, has said that “You can measure the civilization of a society by the way it treats its prisoners.” I believe that also applies to the way a society treats its defendants in criminal cases. Yes our present system is expensive, cumbersome and sometimes too slow; but in many ways it is also the best.

Finally, there is another old saying that a conservative is a liberal who just got mugged, and a liberal is a conservative who just got indicted. In other words, any of us could be charged with criminal offenses and prosecuted at almost any time. It is only appropriate that, when people are forced to face the power of the government in court, they should have skilled, prepared and knowledgeable professional assistance. So that makes the function of a criminal defense attorney fully as important to our system of justice as that of the prosecutor.

And that is why attorneys in our great profession can “defend those criminals.”

James P. Gray is a retired judge of the Orange County Superior Court, the author of “Wearing the Robe: the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2010), and the 2012 Libertarian candidate for vice president, along with Governor Gary Johnson as president. Judge Gray can be contacted at [email protected] or through his website at www.JudgeJImGray.com.