Size, some folks say, doesn't matter. But how about a client's innocence? Does that matter to a criminal defense lawyer? It shouldn't, I say. Indeed, I will go further: A client insisting that he is innocent is one of the most difficult of all clients to represent.
I almost never ask a client whether he committed the crime charged. The simple truth is that it doesn't matter one iota to me. What matters is whether the state can prove its case, and whether I can undermine that proof to show that the client did not commit the acts charged with the mental state required to convict.
Criminal law is not moral philosophy or theology, and lawyers aren't ethical casuists or priests. Our job is merely to hold the state to its burden of proof. In any given case, prosecutors bring charges. To win a conviction, the charges must be proven beyond a reasonable doubt. There are legal and factual defenses that can be raised to most charges. A lawyer selects the defense, and then tries the case or pleads it out, as the client chooses.
It really is that simple. A client's factual innocence or guilt is immaterial. If the state cannot prove its case, the client walks; if the state can prove its case, the client is convicted. In the vast great area between acquittal and conviction clients assess risk. Factually innocent defendants sometimes plea; the state sometimes drops charges against factually guilty defendants.
No one is redeemed at trial. Nothing is made right in a criminal case. The murdered victim remains dead; the violated child still shrieks in shame and rage. Criminal law is not about healing. It is all a simple matter of proof.
This was driven home with a vengeance yesterday. I spent the day doing prison visits. A long day was topped off with a frantic call from another prisoner. Murder, manslaughter, drugs, possession of illegal weapons, child abuse. It was quite a day. My ability to help each of these men is inversely proportional to their ability to understand that a trial is not about innocence; it is about whether the state can prove their guilt of the offense charged.
Clients who desperately assert their innocence over and over and over again can't focus on what needs doing. They can't assess risk. They can't distinguish the material from the immaterial. A howl in the night merely produces an echo, and repeating "I am innocent" one thousand times yields nothing of value.
The simple fact is that no lawyer ever knows whether a client is factually guilty or innocent. If the lawyer has personal knowledge, he ought not to be trying the case, he should be on the witness stand testifying.
"You believe me, don't you?" clients sometimes ask when they assert their innocence. I try never to answer that question. I'm not retained to pass judgment, but to defend. A client seeking something akin to validation from his lawyer blurs the boundary between advocacy and friendship. A good advocate is not a friend. Lawyers who say they love their clients are fools, or they kid themselves.
Fear and anger are normal reactions to facing criminal charges. So is remorse, sorrow and shame. These powerful emotions cloud judgment. Lawyers need to avoid being sucked into these vortices.
I worry that clients think a lawyer's devotion to his case depends on whether the lawyer believes the client is innocent. I wish clients understood that a defense lawyer's job is not to pass judgment. We defend people against accusations. Whether the factual allegations are true or not does not matter. All that matters is whether the state can prove them.
God, conscience, judgment day, all the tropes that we use to tally our individual moral accounts aren't my concern. I would as easily defend a sinner as I would a saint. In fact, I can't tell saints from sinners. That's not my call.
