How Can You Represent the "Guilty"? - Pt. 2

Several years ago, a 33 year-old man was arrested. It happened in secret, without probable cause. No due process would be afforded to this young man: No grand jury  was convened, no indictment issued. As was the tradition of criminal justice in this era, speculation & mob justice had its way. The accusations were all hearsay. His trial, a sham. It lasted one day. No lawyer. No jury. Just a judge, appointed to that position through the political process. And though no credible evidence could be found, the fix was in. Despite the fact that he was a civilian, this military judge sentenced him to that punishment reserved for the most heinous, feared, & perverted members of our society: The death penalty. The charges were for Treason & Sedition.

From this judgment there would be no appeal. He was drug out into the streets, taken to the outskirts of town. There before him, on two separate trees, hung two men also condemned to die. They were displayed there to send a message: this community is tough on crime. There, in a public spectacle too horrific to describe, they stripped him down and carried out the sentence. Crucifixion.

How many of us know this story?

"How Can You Represent the Guilty?"

As a lawyer, the question I get most often is some variation of  “How can you represent the guilty?”: 

- "How can you take on those types of cases?”,
- “How can you represent those people?".

It is that question that inspires me to write today. I tried to tackle this topic before here, but was unable to give it the time it deserved. Thus, I've taken it up again. In doing so, I borrow heavily from Joseph Allegretti, who wrote a wonderful book called "The Lawyer's Calling". The premise is simple & true: most of us struggle with integrating our faith in a worldly (even adversarial) profession. We're conditioned to believe that the dilemma is even greater for lawyers, who may be called upon to take on those types of cases. Perhaps it is. Regardless, there may be a way to harmonize our convictions with the seemingly contradictory expectations of our practice. So, how do we do it?

Ground Rules

Allegretti submits that there are four models embodying the struggle that lawyers have to balance their convictions against their ethical obligations as attorneys. However, before delving into this topic, there are some things that have to be addressed.

First, I hope that the story above makes the Constitutional significance of the Presumption of Innocence and the government's Burden of Proof in criminal cases painfully clear. Law and Order are essential concepts in civilized society. Yet as we demand justice, we (people of faith in particular) have to grapple with the fact that at the core of Christianity is the wrongful arrest, conviction, and execution of an innocent man in a criminal prosecution. 1. Jesus was a victim of injustice in a society that demanded expediency over due process.

While not every person accused is wrongfully accused, representation is a vital part of the system. It probably would not go well if I were hired by a client, took his case to trial, and after the jury found him guilty, stood up and declared, "Your honor, I don't represent guilty people. Now that Mr. Jones has been found guilty, the Court should allow me to withdraw and appoint someone else to handle the punishment portion of this trial". Mr. Jones is entitled to representation despite guilt, & (as we will discuss later) more so in the face of guilt.

Second, no lawyer fits snugly into the following models. In fact, at different times a lawyer may inhabit one or more models simultaneously. Moreover, what follows is merely a summary of those models. There are more benefits and detriments to each which could be explored.

Lastly, Allegretti does not judge. Nor do I. Lawyers, & non-lawyers alike, may recognize themselves or their colleagues in these models. Hopefully, discussing these roles will help us recognize our point of origin and cause us to consider our trajectory.

If We're Honest, We All Struggle With the Morality of Representing the Immoral

1. "The Either/Or" Approach

If you're driven by a moral code, like Christianity, this model creates the greatest problem. From time-to-time, we're asked by our clients to do things that are clearly within the ethical bounds of our profession. There are no restrictions against the behavior which is expected of us. However, we don't feel right about doing those things due to our convictions. For example, in a divorce case, a client desire a "scorched earth" approach to dissolving their marriage. No holds barred.

Here, the lawyer feels like a hired gun - or a prostitute - whose only loyalty is to the client, regardless of justice or morality. The chasm between morality & ethical obligations is too wide & deep to be bridged. Either I can be a good attorney or I can be a good Christian, but I can't be both.

An example of this model can be found in Allegretti's book. There, he recounts meeting a woman in seminary who had been a lawyer but gave up law after deciding she couldn't be both a Christian & a lawyer. Conversely, I know lawyers who grew up with strong religious beliefs - some whose fathers were pastors. Yet, because they were unable to reconcile their work & their faith, their faith took a back seat to the expectations of their profession & the code to which allegiance had been sworn.

The benefit to this approach is that it creates single-minded devotion to being an attorney or being devout. The detriment is that the lawyer can't be both.

2. "The No Distinction" Approach

This lawyer does not see a distinction between his moral code & his ethical obligations as a lawyer. He has a moral code. However, it is found beneath the umbrella of his legal/ethical obligations. Morals have a place, but that place is separate from his professional duties. So what the professional rules of ethics say he can do, he can do; what they say he must do, he must do. Thus, he doesn't recognize a tension between the demands of work and the demands of conscience.

As an example: This individual doesn't see any problem with trying to make a witness look like a liar even when he knows the witness is telling the truth. Why? Because it's his job; he's hired to win.

The benefit to this model is an unmitigated devotion to the client or the cause without doubts. This lawyer will march with his client to the gates of hell and back. The detriment is compartmentalization. The lawyer can be an S.O.B. Monday through Friday, but goes to church on Sunday morning as though nothing ever happened & sees no hypocrisy in it.

More worrisome is the threat of creating a culture where anything goes. The newly licensed lawyer begins his practice with fresh eyes. He sees the practice of law optimistically until he encounters this attorney in an adverse proceeding. In that setting, he realizes that his opponent's "scorched earth" tactics are not unethical, but nevertheless they seem immoral. The younger attorney despises the hypocrisy of his opponent. However, he soon finds that several attorneys operate within this model and that there is no consequence for doing so. Even worse, it seems these attorneys are rewarded for their paradigms. Consequently, he asks, "why be moral?" Meanwhile, the lay citizenry looks down on our profession with contempt as we fulfill the worst stereotypes of lawyers.

3. "The Tension" Approach
This is a dualist approach that attempts to "Render unto Caesar what is Caesar's & to God what is God's". The problem is that there are often stark inconsistencies between our convictions and the professional ethical code. This creates a Moral Schizophrenia. There is an unsettling realization that work is divorced from, and sometimes opposite to, our deepest personal values. Whereas a Model 2 attorney believes he can be both a good lawyer & a good person, the Model 3 attorney hopes it is possible to be both but fears it is not.

If the second attorney's life was compartmentalized, this lawyer's is more so. The only way to give due to God & Caesar is to put personal convictions aside at work, doing everything our ethical obligations want/expect of us there, but then taking those convictions back up at home. In place of an umbrella, he utilizes a shelf. At 7:59am, he places his moral code on the shelf & takes on the practice. At 5:01pm, he trades hats again. He may be very involved in his church & in the community. Yet, colleagues and co-workers would never know how deep his convictions run. Unless they caught him after 5pm. 

Over time, Model 3 may slide slowly and imperceptibly into Model 2.

While this attorney's sincerity is clear, he fails to realize that Christ, our moral authority, is the authority of every part of our lives, & so his claim is on us always and everywhere.


4. "Transformative Model" or "Missional Living"
This model challenges us to live an integrated life. It recognizes that nothing is more relevant to our work than our faith. These convictions have a claim on us that exists in all our actions & relationships - especially work relationships. Thus, the attorney is a moral agent whose actions have consequences for which he is accountable,not just to himself & to others, but ultimately to God.

This prompts the lawyer to bring his personal values into the workplace with hope that those values will work through him to revitalize his life as a lawyer, his profession, & ultimately the community as well.

But how do we do this?

 

The Question Isn't How Do We Represent The "Guilty"?

 

The Question Is Why Do We Represent The "Guilty"?

Professions vs. Vocations
Attorneys are professionals. Allegretti highlights that the word "profession" is derived from the Latin "to profess", to take a vow or make a public declaration. Historically, there were only three professions: law, medicine and ministry. That is not to say that other disciplines cannot be professions. Professions are simply defined by their goal to provide a service to persons and communities. Any work can be a vocation, but professionals exist to serve others. As attorneys, our reason for being is tied up with the satisfaction of basic human needs such as health & justice.


Professionalism means investment

As lawyers, we meet people in their greatest crises. We meet the mother of three heading into divorce, the family filing for bankruptcy after putting everything they had into a failed business, or the accused in a criminal case. Not every client will be receptive to us. However, as ambassadors of the cross, we can use our professional relationship, whenever possible, to walk with our clients through the darkness and show them the light. We have the opportunity to speak truth into our client's lives. This is a prophetic role. The role of the prophet is to afflict the comfortable & comfort the afflicted. 2
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If we are called to serve the lowly & the outcast, who could need our help more than the accused in a criminal trial? Lawyers do not so much "represent" the guilty as minister to the guilty. We are not so much advocates as companions. If the three crosses on Calvary mean anything, they mean that no one is so repulsive, or so condemned, that he is not entitled to have a companion in his misery, and that none of us - not even the Son of God - is too good to be chosen as the companion.2

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Even still, relationships are not formulaic or scientific. There are no classes taught to lawyers regarding how to integrate your faith into your work through personal relationships. Since relationships involve dynamics that can't fit neatly in a box, a mission-based view of our profession will not work the same way twice and cannot happen overnight. However, Allegretti believes, as do I, that it is possible.

The point is that the question of how we integrate our morals & our profession should remain open ended. We should constantly be asking the questions that prod us to the embodiment of the best of the system we serve and the values and God we honor and worship.3 If we can do that, we will transform our clients, our profession, and our communities.,4

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1. Mark Osler, Jesus on Death Row

2. Allegretti, The Lawyer's Calling
3. Mike Russo, Dear Friend and Mentor
4. Allegretti, The Lawyer's Calling;

 

The Weapon of Discretion

I’ve said it before: the real power of the District Attorney’s office is prosecutorial discretion. This power comes with no oversight. It gives the State absolute authority in its charging decisions, and as such, can cause the greatest harm.

Consider, the State, alone, has the power to determine:

· Whether someone who has been arrested should be formally charged with a crime;

· How the accused should be charged (ie, felony? misdemeanor? death penalty?);

· Whether to make a plea offer;

· What sort of plea offer should be made;

· Whether prosecution should continue (or be dismissed)

In an ideal world, the elected District Attorney makes these decisions wisely, and allows his assisting prosecutors to as well. But what if discretion is used as a weapon, rather than a responsibility?

Here's a true-life example from my practice:

Stewart (an alias used for this story) is a nineteen year-old with a drug problem and a lead foot. Stewart was recently arrested for several outstanding traffic tickets which, unanswered, became warrants. During his arrest, he is handcuffed and searched. The search reveals nothing illegal. After his arrest, he is transported to the jail. At the jail, Stewart (still in handcuffs) is searched again. This second search leads to recovery of a small amount of cocaine his shirt pocket - overlooked during the original search.

When confronted, Stewart freely admits that it is his cocaine. In turn, the police charge him with Possession of a Controlled Substance in a Correctional Facility (a 3rd Degree Felony with a punishment range of 2-10 years incarceration, or 10 years probation).

Had the officer conducted a proper search on the street, Stewart would have been charged with simple Possession of a Controlled Substance (a State Jail Felony with a punishment range of 6 months – 2 years incarceration, or 5 years probation).

Stewart has no criminal history. He wants to be placed on probation. However, in his community, he is surrounded by close friends and family members with extensive criminal backgrounds. One of the terms and conditions of probation will be to stay away from people, and places, of harmful character. This will be hard to do, considering his environment.

Stewart wants to keep this case off of his permanent record, if possible. Yet, he is pessimistic about succeeding on a long period of probation due to the overwhelming influences in his life and the long-term financial costs of probation. With this in mind, the prosecutor provides the following choice:

Option 1 - If Stewart pleads guilty to the 3rd degree offense, the State will offer 10 years of deferred probation. Deferred probation is not considered a conviction, if successfully completed. Thus, the arrest could eventually be sealed from Stewart's record. However, should he fail his probation, Stewart will be convicted and sentenced to 10 years incarceration.

Option 2 - The State will reduce the charge from a 3rd degree felony to the proper charge of simple Possession. However, if they are forced to correct the mistake they made in over-charging Stewart, they will only offer 3 years of regular probation. Regular probation is a conviction. Thus, his record could not be sealed later. Pursuant to the terms of this option, Stewart will be sentenced to 18 months incarceration should he fail his probation.

A Hard Decision

Stewart admits that he is guilty of possession. Nevertheless, he never intended to take an illegal substance into the jail. Had the arresting officer searched him properly, or asked whether he had any illegal substances, Stewart would never have been charged for the greater offense. Stewart believes that it is unjust for the State to intentionally prosecute him for an offense he did not commit. Yet, he has reservations about being on deferred probation for 10 years, as offered.

The prosecution refuses to offer deferred probation on the correct charge. Because deferred probation does not include a finding of guilt, it can only be attained through the Judge, after a plea. Once a jury (or judge) declares guilt, the law dictates that deferred probation cannot be given. As prosecutorial discretion belongs to the District Attorney alone, the Judge does not have the ability to reduce the charge and offer deferred probation. Stewart could elect to have a trial, requiring the State to prove his guilt on the 3rd degree charge. However, the jury would still be entitled to find Stewart guilty of the lesser-included charge of Possession, even if they agreed that he did not intend to transport the cocaine into the jail. With that finding of guilt, deferred probation would no longer be an option.

Under the pressure of these two options, Stewart elects regular probation for simple Possession, with a felony conviction.

Is this a Just result?

Some would argue that being overcharged by the District Attorney is the risk Stewart took when he broke the law.

Some would say that Stewart should be prosecuted for Possession, but offered deferred probation.

Some would say that the right thing for the State to do would be to charge Stewart for Possession alone, but make no offer - forcing him to throw himself on the mercy of the Judge in order to receive deferred probation.

What do you think? A prosecutor is tasked with making the right decisions, at all times, for the right reasons. Is this an appropriate use of prosecutorial discretion?

Murder Suspect Released because Charges not Filed Timely

Interesting story: An accused murderer was released on a reduced bond because his attorney was able to demonstrate that the McLennan County District Attorney did not successfully indict him in a timely fashion.

As a primer, indictment is the formalization of criminal charges against a suspect by a body of citizens referred to as a Grand Jury. It is the responsibility of the District Attorney to present the Grand Jury with enough evidence to convince them that the charge for which the Defendant was accused should be pursued in a court of law. However, it should be noted that the Grand Jury makes its determination on a much lower standard than does a jury in a criminal trial. Thus, because of the dynamics of grand jury presentations, it is typically not very difficult for a District Attorney to succeed in having a case indicted by the Grand Jury. As Tom Wolfe wrote in The Bonfire of the Vanities,"A grand jury would 'indict a ham sandwich,' if that's what you wanted."

All sandwiching aside, under Texas Code of Criminal Procedure 17.151, if an indictment is not had by the 90th day that a felony suspect is incarcerated, then that suspect must be released on a personal recognizance (PR) bond. This appears to be what happened in the case of 20 year old murder suspect, Steven Pace.

Even though Pace was recently indicted, this law is designed to protect the constitutional rights of people like Pace who could otherwise be held indefinitely while the District Attorney determined whether or not they would pursue charges against him. Thus, Pace's attorney did exactly what he should have done by securing a PR bond for Pace in light of the delay. Nevertheless, some residents of McLennan County may (understandbly) be upset by the fact that someone who has been charged with an offese as serious as Pace's could be released on such a bond.

Below is the original story from the Waco Tribune Herlad. What are your thoughts? Did the DA's office drop the ball? Is this the type of thing which is to be expected when you have a DA operating in a moderately sized jurisdiction such as McLennan County?

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Man indicted for murder awarded personal recognizance bond

By Kirsten Crow
Tribune-Herald staff writer

Tuesday December 20, 2011

A 20-year-old man indicted for murder was awarded a personal recognizance bond because of the indictment not falling within 90 days of his arrest.
Steven Jay Peace Jr. was released from McLennan County Jail about 5:30 p.m. Monday. Peace was indicted for the April slaying of Emuel Bowers III and has been jailed since Aug. 25, though aggravated robbery was added to his charges Friday.
According to Peace’s attorney, Alan Bennett, the aggravated robbery charge stemmed from the same incident as the murder indictment and therefore received the same allowance for a personal recognizance bond.
According to a McLennan County Jail spokesman, Peace’s personal recognizance bonds total $100,000.
Bennett said Peace will be confined to his home and monitored electronically.

"How Can you Represent the Guilty?"

Recently, that quesion was posed to me, as it frequently is to all criminal defense attorneys. The question presupposes guilt, an assumption which is worthy of its own dialogue. However, for the purposes of this post, I'd be willing to assume that we're talking about a client for whom guilt is undeniable.

Once a client has made the decision to accept responsibility, there's a lot to be said about what factors into deciding what an appropriate punishment is and what sort of punishment (or plea recommendation) is unreasonable. Is there remorse? Is there repentence? Do they have a prior criminal history? What are the family dynamics? Are there young children in the home? Does the client work? Will a conviction for this offense affect their ability to work? What are the feelings of the complaining witness? Who should we consider to be the victim: the individual who was wronged or society as a whole?

These questions may seem abstract in a vacuum, but they quickly become concrete when the client is someone's 18 year-old  daughter, charged with the felony offense of Burglary of a Habitation (2-20yrs potential imprisonment) for stealing an ipod out of her ex-boyfriend's house. The situation is further compounded when we learn that the young girl has no criminal history, dreams of being a nurse, and that the local District Attorney's office has issued a standard policy that probation will not be offered in burglary cases. http://www.kxxv.com/story/15001314/five-men-indicted-on-capital-murder-charges-for-deadly-shootings Suddenly, the need for an advocate is readily apparent.

Aside from the example of the 18 year-old, would-be-nurse, we have to wrestle with whether any given accused citizen can be rehabilitated and become a valuable member of society again. Is there a balance to be found between punishment for punishment's sake and deterrence? Is the application of mercy not particularly relevant when we consider the grace that God has bestowed on we sinners who are redeemed?

"If we are called to serve the lowly and the outcase, who could need our help more than the accused in a criminal trial?...Lawyers do not so much "represent" the guilty as minister to the guilty. We are not so much advocates as companions. If the three crosses on Calvary mean anything, they mena that no one is so repulsive, or so condemned, that he is not entitled to have a companion in his misery, and that none of us - not even the Son of God - is too good to be chosen as the companion." - Jospeh Allegretti, The Lawyer's Calling

With these considerations in mind, the need for representation is apparent. In fact, Justice (*think truth, righteousness*) demands it - and not just representation by an attorney, but by every facet of society that has the capability of speaking into the life of those in need. After all, it is not the healthy who need a physician, but the sick (Mark 2:17). And in some way, we are all unhealthy.