Protecting the Innocent Ones

So, I happened to stumble across this post that talks about the often-asked question that many defense attorneys get ("How do you defend someone you know is guilty?") and contrasts it with the more difficult question: "How do you defend someone you know is innocent?"

The truth is, as a defense attorney, there's nothing that causes me more anxiety, fear, and dread than the client who is actually, 100%, absolutely innocent.


This may seem odd to most people, as outsiders often think that it would be terribly hard to sit next to someone who has, in fact, committed some atrocious crime and to defend and advocate for that person, attempting to get them the best possible outcome for them. But it's the person who has done absolutely nothing wrong that is the hardest to defend. It's that person I fear and dread. 

The reality of the situation is that most of the clients public defenders deal with are guilty of something.  Not necessarily what they've been charged with--it's been my experience that the most serious crime that can be charged will be charged, even if or when it's a bit of a stretch--but usually there does appear to be something going on that the client is responsible for.  Usually there is much, much more behind the story that led to the charges, and often the client is not the only culpable party, but that doesn't always make it into the reports and not everyone who should be charged is.

But every once in awhile, there is a client who is not guilty of anything.  That person causes me to panic and break out into a cold sweat.  That person is facing charges for something that they didn't do.  And they are facing charges when nothing they did is actually a crime.  And they are relying on me to protect them; to help them; to save them from the nightmare they are suddenly in. 

As a public defender, this serious undertaking becomes even more fraught with anxiety when I know that the innocent person whose life is now in my hands did not choose me to be his protector and advocate.  He did not vet my skills and receive recommendations from others; he did not consider my talents and abilities as compared with other attorneys'.  He has me because the judge determined he qualified for a public defender and because my name happened to be the next one on the rotation for case assignments.  He is my client by chance; by sheer luck.  He has no idea if I am qualified or not, although he may have picked up on some jailhouse gossip about me (which happens all the time--I constantly was told my clients in my previous county that I was the "recommended" public defender, as if someone could actually pick and choose, and that there was a ranking in the jail among the inmates about who the best and the worst public defenders were).  But, no matter what he's heard, he has no choice in who is representing him.  His file ends up in my inbox and suddenly, his life is in my hands by complete blind luck. 

The idea of having something so momentous as your criminal case in a matter where you are completely innocent resting in the hands of someone I've never met and have no idea what they are or are not capable of is probably one of the most frightening things I've ever imagined.  Of course, even less-than-the-best representation is likely to be better than representing oneself, but still...it  must be terrible to not have any idea or choice over something that can so drastically effect the rest of your life. 

The innocent person is the client that scares me because everything rides on me.  This person could be wrongfully convicted if I'm not careful and circumspect in my work.  This person could be facing the punishment for my poor work if I do not do my very best.  I always to my very best on everyone's case, but no matter how much I try, if an innocent defendant ends up convicted despite my work, I will always feel that the error lies with me, that somehow I failed the person. 

I have had only one client so far that I believed was actually innocent of the crimes he was charged with who actually took his case to trial.  I reviewed his case with him over and over and we reviewed everything possible.  He decided to pursue trial rather than plea to anything because he was insistent that he had done nothing wrong.  The offer wasn't that great anyway, so I thought his decision to go to trial made sense.  The prosecutor wouldn't budge on his offer so there wasn't much else to do besides take it to trial. 

I thought we had a very strong case.  I worked long, long hours on the trial.  I prepped and prepped and prepped for weeks prior to the trial. I did everything I possibly could.  And I was terrified.  I had to stop myself from throwing up the morning that trial started because I knew that if I fucked this up, my client was going to prison.  And for a long time.  And I knew he shouldn't be going to prison and that if would be my fault, my failure, if he did. 

I put on a very good, very strong case.  My closing was one of the best I've ever done.  The court staff whispered to me in the hallways that they thought we'd win this one.  My client was cautiously optimistic.  And, although I had never communicated the absolute cold fear in me during the trial, he must have felt it at some level, because after my closing, he leaned over to me and whispered, "I just want you to know that know matter what the outcome is, you did a really great job.  I wanted you to know that before the verdict came back.  No matter what, I'm really glad to have had you on my case."  He must have sensed my nervousness and edginess. 

And then the verdict came back several hours later.  Guilty.  On both counts.  My heart dropped and I felt like I might pass out.  What could I even say to my client?  No words seemed sufficient.  And all I could think about was the things I could have done differently, the questions I should have asked during the trial, the evidence I should have presented, etc., etc. 

I'd lost the trial.  He was facing prison time.  A long amount of prison time.  So, if I couldn't win the trial, I was determined to win the sentencing argument.  I'd failed once already--I couldn't fail again.  This client had done nothing wrong, had been convicted wrongfully, and I had failed him.  I had to at least keep him out of prison.

So, we had a contested sentencing hearing.  I spent an hour giving my argument as to why my client shouldn't go to prison. I had witnesses testify, I had photos to present, I had a sentencing brief for the court, I had a powerpoint presentation--I pulled out all the stops and threw everything I had into this sentencing argument because I could not stand the thought of this client being sent to prison after losing at trial 

But, the judge sentenced him to prison.  He didn't give him what the prosecution was asking for, so at least there was that.  But I could not keep him out of prison.  And as the sentence was pronounced, I had to will myself not to cry right there in the courtroom because of the overwhelming guilt I felt at not being able to do more.  At the feeling that something terribly wrong had occurred and I had not been able to stop it. 

Once again, my client could read my reaction easily, as he immediately whispered to me after the sentence, "Don't feel bad--it's only 2 years, that's not that bad! It's not your fault!" And after he was finally in prison, he sent me a thank you letter and told me that I shouldn't feel bad that he was in prison because he didn't blame me and he knew I had done everything I could. 

That was comforting to hear, but it still didn't take away all the helplessness I felt (and still feel to a certain degree, since that client remains in prison still).  I could find some comfort in knowing that he at least felt that he had had the best representation he could have, that he didn't think there was something more his lawyer could have done, but in the end I still felt as if I had failed to protect him.  He went to prison and I didn't stop it, no matter how hard I'd tried.

That pressure is enormous--the pressure of knowing someone's life rests in your hands.  It's always a huge thing to try to understand--that someone's entire future rises and falls on the work that you do or don't do.  No matter whether my clients are guilty of something or not, I always want to achieve the best outcome for them. And I always feel bad when I can't get it.  But that guilt is compounded immeasurably when the person is actually innocent.  

The ones that I know are guilty are not the ones that are hard, emotionally or morally, etc.,  to represent.  In those situations, it's my job to ensure that if the state is going to take away someone's liberty, they do it fairly and by the rules; to ensure that there are no errors in the process; and to try to get the best possible outcome for them. 

It's the ones that are innocent that are the hardest.  The ones for whom truth and justice may not prevail in the end.  The one who will always make me feel a sense of dread and a feeling of overwhelming dedication to protect them.  And a guilt that never eases when I can't.  The innocent ones are the ones I dread.