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What it means to practice criminal-defense law

March 7, 2012

1. History, 2. Law, 7. Post-Trial

There’s an unsurprising change in attitudes when crime leaves abstraction behind.  A person condemns the government for putting people to death until their daughter is dismembered.  Someone is pro-Death Penalty until they watch up close the trial of an acquaintance and see that “truth” and “justice” are concepts foreign in the courtroom.  I chuckled silently when I met someone a month or so ago … he was all happy and intrigued when he learned I was an attorney – until I told him my focus was criminal defense.  You’d think I just ripped one in front of the Queen.  “Until,” I thought, “you need me.”  Too funny.

Some of my clients drink and drive.  Others get into bar fights or rob stores with gun in hand.  More murder people in a variety of ways from beating them to death to shooting them in their bed.  One went down for taking out grampa with a 4 iron.

But what a lot of observers don’t realize is that practicing criminal defense has little to do with their crimes.  The facts are what they are.  I never let a client lie on the stand – ever.  And if he did, I’d ask the judge to remove me from the case – the rules require that of me.  I never nail an adverse witness for telling the truth – but I do ensure that their “truth” is accurately portrayed (stroll here for a bit).

So let’s cut to the chase.  Here’s what it means to practice criminal-defense law.

The only priority is the US and Pennsylvania Constitutions.  I didn’t write either of them, nor was I involved in the cases that have interpreted them.  But I do play my role in ensuring that the rights arising out of them are enforced equally for all people.  Just because my client hangs out in a known drug-dealing neighborhood doesn’t equate to him dealing drugs.  A cop better have an articulable basis for stopping him and, doubly so, for searching him.  If the cop’s search doesn’t withstand constitutional muster, then it is my job to quash the evidence.

Why?  Because if a cop acts on instinct or a gut feel that someone is carrying drugs, he is relying on emotion.  That is a distinction without a difference from searching someone he doesn’t like because they’re a different skin color or their dog pissed on his yard.  We have rules to protect everyone.

Read this, kindly:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It’s the 4th Amendment.  I’m not being smug when I notice that it reads “of the people.”  It doesn’t read “of the people, except for those that look like criminals or are in close proximity to people that look like criminals.”  It’s just “of the people.”

So do guilty people get off on technicalities?  You all know me better by now – there ain’t no such thing as a technicality.  There are violations of the US and Pennsylvania Constitutions.  Now that we have that out of the way, let’s rephrase.  Do guilty people get off because law enforcement or prosecutors violate the US or Pennsylvania Constitutions?  Absolutely.  Yes.  Old saying:  “Better that ten guilty persons escape, than that one innocent suffer,” said English jurist William Blackstone (1723-1780).  Go here for a side trip penned by one smarter than me.

Look at it this way … I just read an article about a US Senator trying to nail Facebook for taking advantage of a “tax loophole.”  Facebook, it seems, is allowed to declare certain expense levels as tax deductions, and those deducted expenses exceed the amount shown on other documents for those same expenses using different calculations.  That’s my emphasis.  A “tax loophole” and a “technicality” as roughly the same.  If the Internal Revenue Code states that you can deduct mortgage interest, for example, then don’t blame me when I buy a house and deduct the mortgage interest.  If the IRC states that for tax-return purposes I need to calculate expenses a certain way, yet perhaps GAAP dictates another calculation for reporting purposes, it ain’t my problem.  It’s not a tax loophole – it’s the tax code!  Go away, Senator, you bug me.

Let’s cut even deeper towards the bone.  Assume that my client is a rapist – um, alleged rapist.  But the cops mess up.  They exceeded their Search Warrant.  I quash the evidence.  Alleged rapist walks.  And rapes (allegedly) again.  How does that make me feel?

First, I detest rape.  It’s a coward’s crime of violence.  I think Justice White should be drawn and quartered for his Opinion in Coker v. Georgia.  Don’t even get me started on Kennedy v. Louisiana.  And I think that people that rape should be bird-caged in the deepest regions of a cave and left there to die.  But did I get the (alleged) rapist off when I quashed evidence?  No.  Flat – Out – No.  All I did was call to the attention of the Court how the prosecution team violated the Constitution.  If anyone should feel badly it’s the cop that didn’t do his job.  Don’t nail me for doing mine.

So what if I worked testimony and closing argument in such a manner that showed the jury reasonable doubt?  Am I to be blamed for the acquittal?  Ask yourself this:  I raised reasonable doubt in what, precisely?  Yes, in the prosecution’s case.  Not in my case.  In their case.  Their case sucked.  Am I to be blamed because their case sucked?  Methinks not.

My focus is the criminal-justice system.  I work on individual cases to ensure that the system is true to the Constitution.  If I work less hard on a case because I think my client is guilty, then I will have become part of the problem.  I work with everything I have to get every trial client off and every appellate client out of prison.  Anything less is to acknowledge that the system is perfect.  It ain’t.

And as my job becomes less abstract because of your life circumstances or those of one close to you, then you’ll see a bit more clearly that cops and prosecutors do not seek the truth – just the win.  I respect their perspective, and join the fight.

But with one difference:  I defend the Constitution.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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