One of the roles I play as an attorney is representing indigent defendants in criminal cases. An indigent defendant is one who cannot afford to pay for an attorney. Typically the local public defenders’ office will represent indigent criminal defendants but if for some reason the public defender cannot represent a particular defendant than the trial court will appoint a private attorney, such as myself, to do so. A frequent reason why the public defender cannot represent an indigent defendant is in a case where there are multiple defendants. The public defender’s office cannot represent co-defendants simultaneously.
The responsibility of a defense attorney is to give advice to someone charged with a criminal offense and then follow the defendant’s direction as to how to resolve the case. In the vast majority of cases, a criminal defendant will plead to some charge. Sometimes the defendant will plead to a less serious offense than the one charged, sometimes the defendant will plead to the offense as charged but for a recommendation by the prosecutor for a sentence which is less than the defendant could receive. In rare cases the charges are dismissed. If the defendant does not plead and the case is not dismissed, the case will go to trial. From my experience, fewer than 5% of cases go to trial.
Be Objective
In order for a defense attorney to effectively advise the defendant, the defense attorney has to be able to look at the evidence in the case objectively. By that I mean that the defense attorney has to be able to put him or herself in the position of the jurors weighing the evidence and objectively decide what verdict the jurors are likely to render after viewing all the evidence.
If the defense attorney only looks at the strong points of the defendant’s case, then the attorney will too often advise the defendant that the chances of a favorable verdict are better than they actually are. In that case, the defendant will take too many cases to trial and likely have less favorable outcomes than if he or she had plead.
If the defense attorney only looks at the weak points of the defendant’s case then the attorney will too often advise the defendant that the chances of a favorable verdict are worse than they actually are. In that case, the defendant will take too few cases to trial and likely have less favorable outcomes than if he or she had taken the case to trial.
To be an effective defense attorney, both the strength and the weaknesses of the defendant’s case must be viewed as objectively as possible.
Don’t Cover Your Weaknesses
In most cases, if there are weaknesses in the defendant’s case that cannot be avoided, the defense attorney is better off addressing those weaknesses him or herself, and admitting them, then avoiding the inevitable. As an example, if the defendant has had a contentious relationship with an alleged victim, and had actually treated the alleged victim poorly, bring that fact up yourself. Don’t wait for the prosecutor to bring it up. Be forthcoming. Don’t try to cover your weaknesses and faults.
Don’t Defend the Indefensible
Defending a position that cannot be held jeopardizes positions that can be held. As an example, proving the defendant’s mere presence at the scene of a crime is typically necessary but not enough in and of itself to prove the defendant guilty of a criminal offense. In most cases, the prosecutor has to prove that the defendant was present but also actually committed some act at the scene of the crime. If the evidence will show unequivocally that the defendant was at the scene of the crime, arguing that the defendant was not even there only makes the defendant’s case less credible. If the evidence is strong that the defendant was present but the evidence that the defendant committed a criminal act is otherwise weak, don’t argue against the strong points of the State’s case, that the defendant was present, argue the weak points, that there’s little evidence the defendant committed a criminal act while there. The effective defense attorney will not let the defendant’s strong positions take collateral damage while defending weak positions.
Don’t Overreach
The easiest way to lose a case is to overreach. The easiest way for me to explain overreaching is by an example.
In this example, the alleged victim said that two men wearing steal toed boots knocked him down on a gravel driveway and hit and kicked him for 5-10 minutes. The defendant claimed that the alleged victim was drunk, which the alleged victim admitted, and was trying to enter the home the two men where in. The defendant said that the other man slammed a door on the alleged victim’s head while he was trying to enter. Once the alleged victim got into the house the defendant said the alleged victim took a swing at the defendant and the defendant struck him once in the mouth. The issue for the jury was whose story was more credible? The alleged victim’s injuries where a split lip and a broken eye socket. He otherwise had no scratches or abrasions, no broken ribs or bruises. The defendant was found “not guilty.”
No one other than the three men involved really knows what happened, whether the defendant hitting the alleged victim was justified or not. But by the alleged victim overreaching in his statements of the wrong he had suffered he lost credibility with the jury and lost the case. Rarely a good strategy to overreach.
The Court of Public Opinion
The lessons I’ve learned as a criminal defense attorney apply in more settings than just jury trials in criminal cases. These lessons apply to life in general and particularly to weighing arguments and evaluating evidence in the court of public opinion. There are no perfect analogies, but there are certainly valuable analogies to be made.