How Do Criminal Defense Lawyers Say What They Do With a Straight Face?

Are criminal defense lawyers dishonest? Or, how can he say that with a straight face?

We’re all familiar with famous cases where everyone knew the defendant was guilty before the trial ever started. The most infamous guilty criminal who walked is probably O.J. Simpson, acquitted for the murders of his estranged wife Nicole and a young man named Ron Goldman who had the bad luck to be with here when Simpson showed up with his knife. The evidence against Simpson was overwhelming – his blood and DNA at the murder scene, the victim’s blood and DNA on his clothes and in his bed room, a fresh cut on his hand, an attempt to flee the country with $50,000 and his passport, etc. But an inner city, heavily black jury bought the defense theory that Simpson was framed by a racist cop and took less than four hours to find him not guilty.

The trial was in 1995, before I started working in criminal defense. I never believed that Furman framed Simpson and it angered me that the defense tried to destroy a good man’s reputation. I was disgusted with F. Lee Bailey, Barry Sheck, Robert Shapiro, and Johnny Cochran, who probably all knew their client was a brutal killer and that Furman did a good, honest job. Now that I’ve got several years of experience in defense work, I still don’t like what they did but I understand why they did it. For the defense lawyer, the trial is not a search for the truth. The rules of evidence are designed to filter the truth, and the defense lawyer has to use those rules to keep as much bad evidence out as possible, and to make the most convincing argument for innocence using the facts that come into evidence.

U. S. Supreme Court Justice Byron ‘Whizzer’ White, in his opinion in the case of US v. Wadeon the opposing roles of the prosecutor and the defense counsel, wrote:

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”

The Texas Court of Criminal Appeals summed it up in Leday v.State, 983 S.W.2d 713,715 (Tex.Crim.App. 1998) (en banc). “We as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial.” Therefore, the court explained, the need to protect some fundamental rights outweighs the truth-seeking function of a criminal trial.

Sometimes the lawyer has to get really creative to come up with something to say in closing argument. For example, the March 9, 2012 Houston Chronicle reported:

“The attorney of an East Texas dialysis nurse on trial for murder says she was spotted drawing bleach into a syringe to measure it for cleaning water, not to hurt patients.

Kimberly Saenz is charged with killing five patients in Lufkin by injecting bleach into their dialysis lines. Attorney Ryan Deaton has challenged the testimony of two patients who say they saw Saenz fill a syringe with bleach. Deaton says they misunderstood what she was doing.”

In the next post we’ll look at “writ writers,” the prison inmates who have the time and intelligence to study trial records looking for something to get a conviction overturned for ineffective assistance of counsel.

For more information, contact the Law Office of Richard Ellison, P.C. for a consultation.