It's A Gray Area: Criminals need lawyers, for the sake of our judicial system

June 28, 2013|By James P. Gray

So many times I hear the question: "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 5th and 14th 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.

Second, the government itself is a powerful entity. I still remember when I was a federal prosecutor hearing one defendant exclaim, when his case was called as the United States versus only him: "Oh my God!" 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 defense attorneys must prove their clients are innocent, or even not guilty. Instead it is their function simply to compel prosecutors to present enough admissible evidence to prove the guilt of the defendants beyond a doubt to a jury of 12 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, because prosecutors can choose their battles, a large percentage of cases result in a finding of guilty. But just knowing that defense attorneys will hold them to their burden of proof typically 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 probably would not be aware of that legal defense.

Or sometimes defendants really may not have had a propensity or inclination to commit the crime they are charged with violating, 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.

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