Getting Away With It

June 14, 2008

Legal Department

Mark Draughn

A few days ago Rob Deters at the 26th St. Bar Association wrote about how it felt to stop a police interrogation of one of his clients:

I've run into police stations, waived my card and Cook County ID around and asked to see my client, where I tell them, immediately, to shut the hell up. I also tell the detectives assigned to their case that my client is shutting the hell up and that he has a lawyer.

However, as a law abiding citizen, and as someone who actually does want the police to catch criminals, assertion of these rights is anathema to the crime solving process. You have no idea how many crimes are sealed with a confession.

...

So why am I conflicted? Because I want the police to catch killers, molesters, thieves and dealers. My job is to be a passionate advocate and defend your rights to their fullest extent. But that doesn't mean I want you to get away with murder.

I want Chicago to have an active criminal blawgosphers, so want to encourage Rob to blog more. To that end, I trolled his comments just little bit:

You say that you don't want to help us get away with murder, but if we're one of your clients, you will, right?

(Within the rules, of course.)

I wouldn't normally ask the question, but since you mentioned that you feel conflicted, I'm wondering what it is about criminal defense that makes you do it despite that fact that you are uncomfortable helping people get away with crimes. In other words...how can you defend those people?

Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:

I can't help anyone "get away with murder." No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn't cheat. That's not the same as helping you get away with murder.

It is to me, if I'm a murderer.

I don't think Rob means what he wrote (at least not the way I'm taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don't do what I've always thought they do, because I'm pretty sure that if I'm charged with a crime, it's my lawyer's job to try to stop the state from convicting me even if I did it.

My view is that a prosecutor or police officer who breaks the law to convict you is a criminal. And criminals convicting criminals is frontier justice. You might as well get a posse and go around shooting wrong doers. That's where I come in, I'm the civilizing force that makes sure we're all playing the same game.

It's not a matter of whether you think you should "get away" with murder, it's whether the other side isn't getting away with breaking the law to convict you.

Yeah, but sometimes you've stood up for all your client's rights and excluded all the illegally-obtained evidence and there's still enough in the case file for the prosecutor to take it to trial. When that happens, the defense lawyer is going to have to try the case on its merits, presenting an argument that he hopes will convince the jury to find his client not guilty.

Sometimes that involves some unsavory but legal tactics, such as attacking the credibility of witnesses by attacking their character, presenting rebuttal witnesses who may be lying, or playing the race card.

This zealous representation of criminal defendants is part of our system of safeguards against tyranny. It forces the government to do the hard work of proving their case every time. It keeps them honest. In that sense, criminal defense lawyers protect the rights of everybody.

On a case-by-case basis, however, it's supposed to be all about winning the best possible outcome for the client. And if the client actually did the crime, but the jury doesn't convict, then he's gotten away with it.