It's A Gray Area: Criminals need lawyers, for the sake of our judicial system

So many times I hear the question: "How can defense attorneys defend those criminals — particularly if you know they are guilty?" The answer is at least four-fold.

First, and quite fundamentally, the 5th and 14th amendments to the Constitution provide that governments cannot deprive people of life, liberty or property without the due process of law. Libertarians and other responsible people realize that due process for almost all cases is simply not attainable without defendants having capable and professional legal assistance.

Second, the government itself is a powerful entity. I still remember when I was a federal prosecutor hearing one defendant exclaim, when his case was called as the United States versus only him: "Oh my God!" That must be a truly daunting feeling.

So to balance the power of the government, it is the mandate of the criminal defense attorneys to make the system work. That does not mean that defense attorneys must prove their clients are innocent, or even not guilty. Instead it is their function simply to compel prosecutors to present enough admissible evidence to prove the guilt of the defendants beyond a doubt to a jury of 12 citizens.

If that is not done, the defendant must be acquitted. As such, we probably should allow juries to return one of three verdicts: guilty, not guilty or not proved.

Of course, because prosecutors can choose their battles, a large percentage of cases result in a finding of guilty. But just knowing that defense attorneys will hold them to their burden of proof typically helps to keep prosecutors from bringing charges that are inappropriate or cannot be proved. So that in itself strongly helps to make the system work.

Third, on some occasions defendants may believe that they are guilty of an offense, but under the law they actually are not. For example, they may have a legitimate self-defense argument against a charge of battery. But unless they have an attorney, they probably would not be aware of that legal defense.

Or sometimes defendants really may not have had a propensity or inclination to commit the crime they are charged with violating, but by the actions of its agents, the government set up conditions that changed that inclination. In those circumstances the defendants could have a legitimate defense of entrapment.

And other times, the defendants may actually be innocent of the charges, even though they believed otherwise.

Based on these circumstances, you can understand why the law encourages defendants to speak openly and honestly to their defense attorneys. If that were not true, an appreciable number of defendants would be inappropriately convicted.

Furthermore, if defense attorneys were ethically precluded from representing defendants who had provided them with evidence of guilt, the defendants would go down the street and find another attorney to represent them and simply lie to the new attorney. No one wins under such circumstances.

But don't worry, because even under this system 85% to 90% of the criminal cases that are filed result in a guilty plea of some form. And of those that go to trial, about 80% result in some kind of a verdict of guilty. Those are probably appropriate numbers. We can be assured that the system was made to work and most of the time it does.

And fourth, laws on the books like "three strikes," mandatory minimum sentences and added penalty enhancements for certain offenses give prosecutors brutally uneven bargaining power to coerce defendants into plea agreements.

How so? Because the risk of spending decades in prison if they go to trial and lose is monumental. So affording even guilty defendants an attorney who is knowledgeable about the intricacies of the system, at least to a degree, offsets some of that power.

Yes, our criminal justice system is slow, expensive and cumbersome, and it certainly can be improved. But most of the time it works.

Even in those situations where the appellate courts find that the agents of the government violated some constitutional or statutory rights of a defendant, and therefore ordered that there be a new trial, most of the time the new trial still results in a conviction.

That actually happened in the famous case of Ernesto Miranda after his original conviction was reversed for what has become known as "Miranda" violations regarding informing arrested defendants that they have a right not to incriminate themselves. He was convicted anyway.

It has been said that you can measure the degree of civilization in a society by the way it treats its prisoners. I believe that also applies to the way society treats its defendants in criminal cases.

Finally, there is another old saying: that a conservative is a liberal who just got mugged, and a liberal is a conservative who just got indicted. In other words, any of us could be charged with criminal offenses and prosecuted at almost any time. It is only appropriate that when people are forced to face the power of the government in court, they should have skilled, prepared and knowledgeable professional assistance.

So that makes the function of a criminal defense attorney fully as important to our system of justice as that of the prosecutor.

And that is why attorneys in our great profession can "defend those criminals."

JAMES P. GRAY is a retired Orange County Superior Court judge. He lives in Newport Beach. He can be contacted at

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