Learn it! Speak it! Live it!
Bring Christmas to a child in need!
An 'urgency': Sensing threats to institutions of society, church leaders make declaration 
Click to Print
Include Comments
Criminal defense attorney, on the defensive
As a criminal defense attorney, Mickey Sherman gets asked a lot of questions about why he does what he does. In “How Can You Defend These People?” Sherman, whose former clients include Kennedy cousin Michael Skakel and “Preppy rapist” Alex Kelly, tackles the tough questions people often wonder about. Excerpts from his book include: How Can You Defend Someone When You Know That They’re Guilty?, Aren’t You Afraid To Deal With ‘Those People?’, and Are There Cases Or Clients You Won’t Take?
The sample chapters are rather interesting, particularly regarding how attorneys like Sherman decide if they are going to defend someone. According to Sherman, whether a client is guilty or not is really a non-issue in that decision:
Shocking as it may sound, we generally believe everyone hires us is probably guilty of something. That’s why they need us! Their apparent guilt is hardly ever a factor in determining whether we want to represent them or not. As discussed in the first chapter of this book, we are often not the best judges of our client’s guilt or innocence and we have no business setting ourselves up as their judge and jury. Our job is to defend them within the bounds of the law and rules of the court. End of discussion.
What’s your reaction to such a statement, and how do you feel about the work of criminal defense attorneys?
back to top22 Comments to “Criminal defense attorney, on the defensive”
As long as they continue to be ranked below Journalists. Politicians and the Grim Reaper, I have no problem with lawyers.
It was just a joke folks. I really don’t that much
Report comment to moderator
We have a system that is supposed to presume innocence unless guilt is proven. Whether a lawyer or the public believes the defendant is guilty or not, a person still has a right to legal defense. Granted, sometimes guilt is easier to prove than innocence, I’m glad that the burden of proof lies with the prosecution.
I know that sometimes innocent people serve sentences under our system, but I think it’s better that anything I’ve ever seen anywhere else. And, I believe there are far fewer innocent people punnished or brought to justice under our system than under any other system. Defending those accused may be a dirty job, but someone has to do it. If consience does not allow a lawyer to defend what seems to be indefensible, then said lawyer should work in another area of the legal system.
I may not like the crimes and to me the accused may seem guilty, but they have a right to due process. I would want the same rights afforded to me.
Report comment to moderator
I think that the bothersome aspect is that lawyers try to out-trick one another. These days, innocence is determined more by the legitimate evidence a defense lawyer can get excluded due to technicalities than by honest evaluation of the facts.
Report comment to moderator
Why shouldn’t personal ethics prevail in these cases? If a lawyer believes a client is guilty, (s)he should not take the case.
Report comment to moderator
Another aspect to keep in mind is that the State also possesses abundant resources for prosecution. As the phrase goes, “a grand jury would indict a ham sandwich if the prosecutors so requested.”
The defense attorney stands in the way of this excess power — power that is used in both an indictment, but also in the degree of punishment. Justice is not only a matter of guilt and innocence, but also when convicted, of the appropriate sentence. Courts and the populace (the “mob”) can demand a punishment that is fundamentally unjust. Who then will be the advocate in those circumstances?
Report comment to moderator
Metanoia, to your point about personal ethics, if a laywer believes a client is guilty, that lawyer can still in good conscience provide the legal representation the defendant has a right to, defend him against charges beyond what he’s clearly guilty of, make sure that sentencing is appropriate, and in general help ensure that due process is given.
Report comment to moderator
Mommy writes: “These days, innocence is determined more by the legitimate evidence a defense lawyer can get excluded due to technicalities than by honest evaluation of the facts.”
So you blame the lawyer and not the judge who excluded it? That said, the exclusions are there for a bunch of reasons. Like Klasko said, “… they have a right to due process. I would want the same rights afforded to me.”
Harris is quite right: the power of the state is tremendous, and its resources virtually unlimited. You wouldn’t want to go up against that alone. And yes, there are prosecutors who just want a conviction rate to further their own careers.
There are jobs I don’t want to take and have so far successfully avoided them, but I wouldn’t let anyone stand alone.
Report comment to moderator
I would respect a lawyer you sought to provide a fair trial for his client. Sadly I don’t believe that is the norm. Unfortunately, from what I have witnessed from the jury box, it seems that both lawyers are bent on defeating the other lawyer. The performance is overblown and ethical lines (my opinions) are crossed in the competition. I even remember a judge commenting that we had two great lawyers at one trial and were in for quite a show … I’m glad I was excused from that panel before they finally seated the jury.
Report comment to moderator
This is a good subject and the way it is handled in America bears great witness to our system of government and the principles of our Christian faith, upon which our system of government is founded.
We promote the freedom of speech and conscience for every man during his earthly tenure, just as the Bible promotes it. This allows for a great diversity and freedom of choice here on earth.
In our earthly justice system we have innocent people and guilty people and those who are willing to defend both.
Personally, I believe that justice is the highest goal of our system and I could easily see myself as a judge or an attorney for the innocent. I could not easily be an attorney for someone I “knew” to be guilty. To attempt to “prove” his innocence would put me in the position of trying to uphold a lie and to pervert the goal of the whole system—justice. I could not, in good conscience, do that.
However, the beauty of our system is that we allow for diversity. There are plenty of people who have different views and who are willing to defend the guilty. Let the guilty seek them out and employ them. I bear them no ill will—unless they are just like their really guilty client and seeking only to pervert the goal of the system.
However, it may just be that the person I “knew” to be guilty was innocent after all. If so, I would rejoice in their acquital and the correction of my earlier mistaken estimate. Then the lawyer who operates on the moral principle that all have the right to be represented and defended is to be applauded. I believe in that principle too, by the way. Only I just couldn’t bring myself to argue a lie for the guilty. So, maybe I don’t believe in that principle as strongly as I think I do.
Blast! Do I sound confused? Yes. I am, and I have never been able to sort these issues out in my unlawyerly mind. I said earlier that I could easily see myself as a lawyer for the innocent, but on reflection that is not realistic. That’s only for movie fantasies. It would be like me, as a pilot, saying that I wlll only fly in VFR weather. In the real world, that just would not cut it.
I am glad our system promotes the Biblical concepts of freedom of speech and conscience. It allows for all this diversity to work itself out and, for the most part, achieve the best results of justice for all involved.
I would not make a good lawyer and I’m glad I never attempted to go down that road. Yet, I do try to understand. So, I’ll just wait and see what others have to say here. Perhaps I can learn something.
Report comment to moderator
Defense attorneys are an essential part of the American justice system. The accused are entitled to a defense and the state is obligated to prove the case.
This is all as it should be. Even clients that “everybody knows” are guilty are entitled to make the state prove it.
As long as the attorneys behave ethically, there shoud be no qualms about their role.
In traditional Christian thinking, isn’t that what Jesus is? Our defense attorney (advocate)?
Report comment to moderator
If you have any sense at all, you will realize when you need a lawyer (they can be quite handy), until then, they are fair game
Seriously, people should never be allowed to be their own lawyers – esecially lawyers.
Report comment to moderator
Harris and KevinB: Points well noted. I was focusing my comment solely on the one side of the issue.
It raises a question for me. If I am a defendant, would I be looking for a lawyer who believes I’m guilty and is only trying to get me a reduced sentence? Or am I looking for a lawyer that will find some kind of way to get me acquitted?
I don’t think most defendants are looking for a lawyer who will get them reduced time, they are looking for somone who will get them off.
Report comment to moderator
Having spent a brief period of time working in a Public Defender office, my perception was that the far bigger problem was the ‘assemblyline’ nature of the process that largely requiring an essex of plea bargaining for the system to function.
The lawyers were not really in much of a position (and were not mcuh inclined) to try to job the system. Private practice guys – with an unlimited resources client – might be very different. However, there are few unlimited resources criminal defendants (they get lots of press, but there are not many of them).
Report comment to moderator
P.S. I just read the excerpts of Sherman’s book. I am going to buy it. He has already convinced me that all criminal defense lawyers aren’t scum.
But, then again, maybe I’m just gullible and he is already using his courtroom smarts on me.
I need to read more.
Report comment to moderator
Dad of 5, I sat on a jury a month after I passed the bar and was still working for a judge. I was totally embarrased to have to admit both things when questioned. The very first thing all the other jurors said when we went into deliberations was how awful and sleazy the lawyers were, but hastily added “present company excepted.” But they were so right! Lawyers who over act and think it’s all about them suffer in the long run via their reputation.
Michael Martin, you wouldn’t be trying to prove the innocence of a guilty client; rather you would be raising the reasonable doubt.
Report comment to moderator
NJL – My jury experience (right before entering law school) was an eyeopening experince too.
I think all lawyers should have to be on a jury before being permitted to practice in front of one.
Report comment to moderator
Michael Martin, you wouldn’t be trying to prove the innocence of a guilty client; rather you would be raising the reasonable doubt.
The role of the defense attorney is not just about defending the client; it’s also about (maybe much more about) keeping the government on its toes.
The whole reason for having an adversarial system in which the defendant is presumed innocent is to ensure that the government can’t put people away too easily. The defense attorney’s job is to challenge evidence, raise doubt, catch witnesses in false statements, etc. — not to get a guilty person off, but to require the government to behave scrupulously and thoroughly in order to prove its case.
Report comment to moderator
Well said, SteveG.
Report comment to moderator
My friends who practice criminal law are generally on good terms with the local prosecutors. The kind of stuff that we see on TV legal dramas rarely happens in the lives of real lawyers.
Report comment to moderator
Coming real late to this debate, but I wonder about prosecuting attorneys. Given the Duke Lacrosse case, and the Border patrol officers case. It seems to me that some prosecutors want a conviction at any cost. It would seem to me that a government man would want justice at any cost. However, there are enough instances to indicate that is not the case.
Serious question. Can anyone enlghten me on this. I will check in tomorrow.
Report comment to moderator
Chas – It is unfortunate, but part of a prosecutor’s performance review revolves around conviction rate. Some also develop the mentality that the system is to be all out adversarial (both prosecution and defense swing for the fences on every matter – such that the prosecutor essentially abdicates his gatekeeper of justice function and simply relies on the defense to protect the defendant).
Most are fairly good people, but many are overworked/overburdened with caseloads such that the ‘let’s make a deal’ mentality creeps in.
Report comment to moderator
And if the defense doesn’t have money for powerful lawers, as O.J. did, he’s in trouble. Like Scooter Libby. (Though that likely wasn’t his problem.) I know, somebody will come here to say, SCOOTER LIED!
Scooter was set up, and you know it.
Report comment to moderator
back to topJoin The Conversation
You need to be a registered user of WORLDonTheWeb.com to "join the conversation."
If you are not a member yet, what are you waiting for? Register / Login Now!