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Information about issues related to criminal law in Michigan. If you need legal assistance, please contact a lawyer.


Why Do You Defend Criminals?

When people find out that I practice criminal law, they all want to ask me the same question: “Why do you defend criminals, especially when you know they’re guilty?” It’s a fair question; after all, it’s in our nature to want to punish “evil doers” and it seems counterintuitive for someone to voluntarily defend such characters, especially when he could easily make more money doing something else. So I do my best to provide an answer, which usually goes something like this:

Most of the time I’m not trying to convince a jury that the defendant is innocent. Thankfully, the police do get their man most of the time, and they usually have such overwhelming evidence that there would be no point in fighting the charges. In these cases, my job is to help my client understand the process (where to go, what to do, and why it’s important to do so) and to make sure that the sentence imposed is not excessive.

Other times, I have a client who is fighting the charges and wants to go to trial. Guilty or not, it doesn’t matter: in these types of cases, my job is to make the government prove its case or set my client free.

This is where people often get confused and wonder how any person in his right mind could defend someone who commits a crime, especially if it’s a heinous crime. What people often fail to do is distinguish between defending a person’s actions and defending a person’s rights. That distinction makes all the difference.

As a defense attorney, I am rarely in a position to defend a person’s actions. Nor do I want to. Except in cases where my client did something under unusual circumstances—for instance, shot someone in self-defense or drove a car without a license to rush his dying grandmother to the hospital—my client’s actions (or alleged actions; again, an important distinction) are not justified. And it would be pointless for me to argue that they were, if for no other reason than this: if we get to the point where I would have to argue that a criminal defendant’s actions were justified, the government has already proven that the defendant took those actions. At that point—absent the kind of unusual circumstances that would make a justification defense appropriate—the government has already won.

What I do every single day, however, is defend people’s rights. If the government wants to punish my client for a crime, it must first prove that she actually did commit the crime and it must do so without breaking the law itself. That’s where I come in: I make sure the government isn’t trying to pull a fast one.

Of course, this point generally leads to a couple of questions. The first is this: “If you know your client is guilty, though, why does the government have to prove anything?” The answer to that question is, unfortunately, not as simple as one might think.

One problem is that people sometimes think they are guilty of something when they are not. This actually happens fairly frequently. For instance, consider the following scenario, derived from a real case:

Thelma Thief steals a car and drives it to the house of her friend, Dan Defendant. While Dan is talking to Thelma, a cell phone lying in the seat starts ringing. Dan gives Thelma a quizzical look, gets a shrug in return, and decides to answer the call. The voice on the other end says, “Hey! You stole my car! I’ve already called the police!”

Dan says to Thelma, “Did you steal this?”

Thelma nods her head and says she saw it outside the post office with the engine running.

Into the phone, Dan says “I didn’t steal your car. My friend did, and I didn’t know anything about it.”

The car’s owner yells back, “I don’t care who you are. Just bring my car back!”

Dan tells Thelma to get out of the car. He then gets into the driver’s seat and starts to drive the car to the post office. Halfway there, he is stopped by police and arrested. He is taken to the police station, where the police ask if he knew the car was stolen. Dan, of course, tells them that he did. He is subsequently charged with Unauthorized Driving Away of an Automobile (Michigan’s rough equivalent of “grand theft auto”)

Under these circumstances, Dan would probably think he was guilty, would tell his lawyer he was guilty, and would probably plead guilty if he did not have a lawyer willing to defend him. After all, he was driving a stolen car, and he knew he was driving a stolen car. The problem here is that under Michigan law, he is not guilty of a crime: one of the elements of the crime is that he drove the car without the owner’s authorization, and in this case the owner gave him permission to drive the car. So if the government didn’t have to prove its case—and if there wasn’t a lawyer to defend his rights—Dan would be convicted of a crime he did not commit.

Another problem is that even if I know the client really did commit the criminal act charged, the government still has to prove it. It’s important for all of us that I make the government prove it in every single case. If I don’t, we no longer have a system where people must be found guilty by a jury of their peers; we have a system in which only the defense attorney has to be convinced. I don’t know about you, but I don’t feel protected in that kind of system.

As an extension of this problem, imagine that a defendant thinks his attorney won’t defend him if the attorney thinks he is guilty. Would the defendant, under those circumstances, feel safe telling the attorney all of the facts in the case? For instance, let’s modify the facts in the scenario above with Dan Defendant. Let’s say the police never asked Dan if he knew the car was stolen, or Dan (wisely) asserted his Constitutional rights to remain silent and have counsel. If Dan knew that a defense attorney wouldn’t defend him if he was guilty, Dan might not tell his attorney that he talked to the car’s owner on the telephone because this would show that he knew the car was stolen. Without this crucial information, Dan’s attorney would not know that Dan was not really guilty and Dan would end up convicted of a crime he did not commit.

So why does the government still have to prove its case when I know my client is really guilty? Because if it doesn’t, there’s no such thing as a real right to a fair trial for anyone.

The other follow-up question I usually get is this: “If your client is guilty, why should he get off on a technicality?” My answer: “What you call a ‘technicality’ I call a ‘Constitutionally-guaranteed right.’”

The Fourth Amendment to the Constitution protects your right to privacy, ensuring that the government cannot (with certain notable exceptions) break into your home, search your person, or otherwise invade any place where you have a reasonable expectation of privacy without first proving that it has probable cause to establish that you have committed a crime, or that evidence of a crime will be found. This is what keeps the police from simply coming into your house at any time of the day or night and rummaging through your things for no good reason.

Unfortunately, the Constitution doesn’t specify what punishment the government receives when it violates your right to privacy . . . and what good is a right if there are no means to enforce it? This is why the courts have established the exclusionary rule: any evidence obtained against you in violation of your Fourth Amendment rights cannot be used against you in court. It doesn’t matter what the evidence is; if the government obtained it by violating your rights, the government will not be rewarded by being allowed to reap the benefits of that violation.

I’m usually interrupted at this point. “That’s all well and good,” I’m told, “but if the police know that something’s in the guy’s house, and they go in and find it in the guy’s house, he shouldn’t get off just because they didn’t go through the proper procedures.”

The problem with this theory is that police officers are like everyone else: they make mistakes. They are often absolutely sure that they’ve got the right suspect and develop tunnel vision as a result. When this happens, they discount any evidence that would tend to exonerate the suspect and overestimate the value of any evidence that tends to incriminate the suspect. (If you don’t believe me, just ask Richard Jewell.)

So what happens when the police are absolutely sure that you committed a crime and they break into your house? What possible incentive do they have to not break into your house if they have nothing to lose by doing so?  The short answer is “none.” The only protection that you and I have against these sorts of draconian invasions of our privacy is the guarantee that if the government does find evidence of a crime as a result of such a search, it will not be allowed to benefit from that discovery. This deters the government from conducting such searches and provides a strong incentive for it to abide by the law instead.

So why do I defend criminals? Because I believe that it’s necessary to do so—and to do so zealously—to protect the rights of law-abiding citizens. And because I want to live in a country where, if I’m wrongly accused of a crime, I will be able to make the government publicly demonstrate what evidence it has so that I can point out why the government is wrong.

What I’m happy to report is that, most of the time, criminal defense attorneys—myself included—lose their cases. It’s not that we do a bad job, or that we “throw” cases when we know our clients are guilty. On the contrary, it’s because, on the whole, police and prosecutors do their jobs well. Most of the time, they get the right guy. They obtain enough evidence to convict. And they do it legally. When that happens, there’s not much any criminal defense attorney can do. And that’s the way it should be.



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