As a Kentucky criminal defense lawyer, I am occasionally asked how I can represent a defendant who must be guilty because they were arrested by the police. I note that to be an effective criminal defense lawyer I take the viewpoints that my client is innocent, that the police make errors, that the police have a tendency of overcharging the defendant, that evidence may be wrong, that witnesses err in their recall or that they may provide untrustworthy testimony, and more.
This response occasionally leads to the next question, how can I represent someone who I must know is guilty? Well, I usually state that I don’t know that my client is guilty. I go on to explain that as part of my defense strategy, as a rule, I avoid asking my client questions which elicit answers wherein they state they are guilty of the crime(s) charged: all I want to know are the facts and the evidence which the officers and the prosecutors collected from my client so I can plan a suitable and aggressive defense.
I further explain that at least one United States Supreme Court Justice commented on the role of law enforcement, the role of the criminal defense attorney, and the strategies used by criminal defense attorneys. In commenting on the role of law enforcement officers and the defense attorneys, United States Supreme Court Justice White stated:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States vs. Wade, 388 U.S. 218, 256-259 (1967).
For example, on May 13, 2010, I watched TNA wrestling wherein the police arrested the wrestler called "the monster" Abyss. At the beginning of the show, the facts presented to the viewing audience indicated that Abyss had assaulted Chelsea - a model who acts as a valet for the wrestler Ric Flair. The accused, Abyss, claimed innocence. Throughout the program the viewers were fed pieces of information about the assault. However, it was not until the end of the program and after the arrest of Abyss that the viewers were presented with "hidden" camera video evidence showing how another wrestler and Chelsea framed Abyss by planned the assault, making false statements regarding the assault, and how they falsified the evidence of the assault - in this case the ripped dress, water, and tears. While the viewing audience may have believed that Abyss was guilty of the assault, but I would not have based on how I represent my clients.
Post by Lexington Criminal Defense Attorney Stephen J. Isaacs, Isaacs Law Office.
