Since jurors are literally asked to speak the truth, its best to remember being a criminal defense attorney entitles you to all the respect and credibility of a Nigerian telemarketer. Ordinary people can’t get past how criminal defense attorneys can represent people they know are guilty. I am a criminal defense lawyer and know this because when what I do comes up at social gathering, people always ask, “How can you represent someone you know is guilty?” I gave up trying to explain not all my clients are guilty years ago and now simply reply, “Representing guilty people is easy. They get convicted and sent off to prison. It doesn’t bother me in the slightest.” Then I pause for a moment before continuing, “It’s representing innocent people that’s hard, keeps me up at night, and has given me all these gray hairs.”
The truth is lawyers aren’t soothsayers. They rarely know who’s guilty or innocent when a new case walks through their door. More often than people realize, lawyers don’t even get to decide who they represent. They get a call from a Judge who politely “asks” them to represent someone no lawyer in his or her right mind would ever choose to represent. Like the defendant I was appointed to represent accused of murdering a pawn shop owner during an armed robbery the day before Christmas.
I should have known what was happening when I got a call from a judge I didn’t have a case pending before the week after that Christmas. He asked, as if it was a personal favor, if I would represent one of the defendants in this particularly cold-blooded murder. We both knew I was ethically obligated to accept the appointment and, there was nothing I could say but, “Yes, sir, your Honor. It’d be my pleasure to represent this young man. I’ll drop everything and get right on it.”
And that’s what I did. I went out to the jail that very afternoon to meet my new client. At twenty something he was already a gang banger headed well down the career criminal path. Like most criminals, he thought he had everything figured out. He looked at me sideways with a smirk on his face as he told me the other two defendants made him do it, they threatened to kill him if he didn’t rob the pawn shop with them. I explained you can’t take an innocent life to save your own so duress is not a defense to murder. He looked at me with a smirk on his face like I obviously didn’t know what I was talking about and told me slowly, so I’d understand, he didn’t know the other guys were going to kill the owner. I explained during the commission of a felony, the hand of one is the hand of all and he was just as guilty as the guy who pulled the trigger in the eyes of the law. He wasn’t smiling when our interview concluded. My legal advice had done little to instill confidence in me as his lawyer and, more than likely, had planted the seeds I was just part of the larger conspiracy against him.
My client and his co-defendants were smart enough to wear gloves, retrieve the spent bullet casing, and take the pawn shop’s security camera video tape with them after they murdered the owner. They left little forensic evidence for the police to go on. In fact, the police were stymied until they got a Crimestoppers tip from one of the co-defendants’ girlfriends who was pissed off he’d forgotten to pick her up some Christmas jewelry during the robbery. She called Crimestoppers looking for a reward and said she knew where the stolen loot was stashed. You’d think these criminal masterminds, having been smart enough to take the security tape, would have been smart enough to destroy it but, no, they kept it right in the sack full of the guns they’d stolen.
Most security tapes are of poor quality, grainy, and with poor resolution but, not this one. It was crystal clear showing the three robbers nonchalantly enter the pawnshop and meander through like they were shopping until they made it up to the locked glass counter where the guns were displayed. Facing outward, the security caught the back of the owner’s head. There wasn’t any audio but anybody watching the tape could tell he was talking to them, probably wishing them a Merry Christmas and asking if they needed any help. You could see one of the co-defendants pull his gun and wave the owner off to the side. There was no camera in the back room where the owner was led showing him opening the safe or the execution style gunshot to the back of his head that took his life. What the camera did record was the other two robbers, one of them my client, still standing in front of the gun case gleefully picking out the guns they wanted like kids in a candy store. You never saw either of them so much as flinch when the fatal gunshot was fired, a fact repeatedly pointed out by the prosecutor.
I represented this defendant to the best of my ability right through the three-day onslaught of damning evidence his trial turned out to be. The prosecutor began by presenting the holiday shopper who suspected something was wrong when he found no one was in the shop. Who looked around and found the body of the owner face down in a pool of his own blood in the back room. He played the shopper’s frantic 911 call. The prosecutor called the forensic team and introduced the crime scene photographs of the owner’s lifeless body. One CSI explained how the blood spatter evidence showed the owner was shot bent over in front of the safe he opened. A ballistics expert testified and showed a photograph matching the markings on the fatal bullet with a bullet fired from a gun found in the co-defendant’s apartment. The prosecutor called the medical examiner to describe in graphic detail how the bullet exploded through the back of the owner’s skull, sending the mushrooming bullet and bone fragments tearing through the owner’s brain before exiting his forehead through a much bigger hole and killing him i9nstantly. He then called the lead detective to explain how the police had no leads until they received the Crimestopper’s tip. Our defense lawyer’s objection what the girlfriend told the police was hearsay were overruled with the Judge helpfully instructing the detective, “Don’t tell us what she said, just tell us what you did based on what she said.” “Well, your Honor, we got a warrant, went to the co-defendant’s apartment, and found the bag, the guns, and the video tape right where she said they’d be.” The prosecutor introduced more photographs of the canvas bag packed with guns and, yes, the security camera video tape, all hidden up in a ceiling panel in the co-defendant’s apartment. He didn’t have to, but for good measure the prosecutor traced every one of the guns found in the bag back to the records of the pawn shop. Then, and only then, did he play the video tape for the jury. By the time the tape was finished, everyone in the courtroom could see the guilty verdict etched on the juror’s faces. The prosecution rested.
Now it was the defendant’s turn to present evidence. A lawyer can advise a client whether or not he should testify, but the decision remains the clients to make. Needless to say, I advised this client against testifying. Advice he promptly ignored, convinced the jury would be swayed by his story of how he was forced to commit the robbery. All his testifying did was give the prosecutor the opportunity to replay the tape again, and again, highlighting all the damning parts, especially him not flinching when the fatal shot was fired. It took three days to pick the jury and try his case. It took the jury less than an hour to convict him and both co-defendants of murder, kidnapping, and armed robbery.
Before a Judge passes sentence, it is customary to ask the accused if he has anything to say. called an allocution. When the Judge asked my client if he had anything to say, the client stood up with that same smirk on his face he had when I first met him in the jail,and said, “First of all, your Honor, the prosecutor didn’t have nothing on me. He had no evidence I kilt that man.” The little artery on the Judge’s forehead began to pulsate as I thought to myself, so much for acceptance of responsibility. “Yeah, and the prosecutor he discriminate against me cause he didn’t charge me with kidnapping til after I said I didn’t do it and that proves he was vindicative against me.” The Judge’s complexion reddened and I thought so much for showing remorse. And, then he said, “And my lawyer, Judge, he was incompetent. He was taking notes during the trial and that proves he wasn’t prepared.” By this time the Judge’s eyes were bulging out their sockets. The Judge sentenced all three defendants to life without parole for the murder, 30 years for the kidnapping, and 25 years for armed robbery, all sentences to run consecutively, one after the other. It was the maximum sentence he could impose and, in case you wanted to know, it didn’t bother me in the slightest.
Being the lawyer for this defendant was easy. There was nothing I or any lawyer could have done for him. I dutifully filed his appeal so an appellate public defender could be appointed to argue his unprepared, note taking lawyer was ineffective. As far as I was concerned, I did my professional duty and never lost a minute’s sleep over the sentence he received or my role in his trial. Still, I wonder what that jury thought. They were never told I was appointed to represent him. I’m sure as they sat there in the jury box, they wondered how I could represent someone I obviously knew was guilty. They never knew I never had a choice.
The experience wasn’t all bad. They call it practicing law for a reason. I got to practice my lawyer’s poker face not respounding to damning evidence during a trial, a valuable trial skill every lawyer must learn. Also on the plus side, the Judge, who did know I was appointed to perform this thankless task, would owe me an unspoken favor that could someday result in him ruling in my favor on a legal issue that otherwise could go either way. And I got to know the prosecutor who I would try other cases with over the coming years. Cases in which the evidence wouldn’t always be so one-sided, and thankfully, often with a different result. We came to respect each other’s trial skills and became friends, but thereafter, no matter what the case was we tried together, or how it was going, we would always both get a good laugh when he would quip I was unprepared because I was taking notes.
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