Why We Defend the Guilty, Too

Nothing stirs our zest for battle as much as the cause of the falsely accused. Yet we also defend persons who are guilty. Why do we do that?

One reason is practical: we could not sensibly sort prospective clients into “guilty” and “innocent” categories at the beginning of their cases. The stigma of child abuse and other special assaults is so great that persons who eventually tell us they are guilty sometimes begin by telling us they are innocent.

Another reason is that we care about everyone. Long ago, when David Marshall left his job as a prosecutor and began to defend the accused, he was surprised how natural it was for him to care about the accused. Before, he had sometimes just seen them as the bad guys he was trying to convict. Now, he saw them as fellow human beings, like all God’s children in that their characters had both weaknesses and strengths.

Genuine compassion for our clients, the guilty as well as the innocent, remains a hallmark of our firm. For clients who wish to plead guilty and seek a treatment alternative to a prison sentence, we have the experience and knowledge of the law they will need. We also find much satisfaction in opening a path to healing for the guilty and their victims.

The third reason we represent the guilty is that, under our legal system, everyone, regardless of what he or she has done, is entitled to a lawyer’s help. In vigorously representing the guilty, we play an essential role in the American system of justice.

It is not a lawyer’s duty to act as judge or jury. If you tell us you are innocent, that is enough for us—we set out to defend you as innocent. It would not help anyone for us to spend time pondering whether to believe you, so we don’t. We just believe you.

There is only one way our representation of the guilty could interfere with our ability to win freedom for the innocent. That would be if we came to presume all our clients guilty and set about to defend them as if they were guilty. Perhaps some defense lawyers (lawyers who have fewer innocent clients than we do) fall into this way of thinking.

This way of thinking is hazardous to the innocent because there is a difference in how one defends the innocent and the guilty. The lawyer who presumes his client guilty will not look for evidence of innocence—the lawyer presumes it does not exist. Rather, that lawyer will look for weaknesses in the prosecution’s evidence—the fading of a witness’s memory, a witness’s criminal record that undercuts his or her credibility, an error in the analysis at the crime lab.

Such weaknesses help the innocent person, too, and we pursue them. But the heart of our work for the innocent person is to build the case that proves his or her innocence. Part of that work is teaching the accused to testify to the unvarnished truth—a way of testifying that runs against the self-preservation instinct but is surprisingly powerful. Our pre-trial interview of a complainant is also rooted in the pursuit of the truth. We seek, not to trick the complainant into saying things he or she doesn’t truly believe, but to find out what is in the complainant’s memory—and if it is a memory of something that never happened, to get information from the complainant that will help us prove that.

Our zeal in winning freedom for the falsely accused is the bedrock of our firm. Because of that, we can also represent the guilty without reducing our effectiveness for anyone.