The Texas Tornado (and New York Steak Aficionado), Mark Bennett, follows up on a comment by J-dog Rosenberg that raises one of the more hairy, and bizarre, aspects of defending people.  Why do some defendants insist on their innocence, pushing their attorney to act upon a piece of evidence that will conclusively prove their guilt? 

Walter Reaves, at Waco Criminal Law, relates his experience dealing with this phenomenon.  His theory is that some defendants convince themselves of their innocence, reality notwithstanding.

So why do people insist they are innocent, when there is no doubt they are guilty? I don't have any scientific support, but I think that are some people who can actually convince themselves of something. The more they tell themselves they aren't guilty, the more they believe.

Of course, I also think that are people who just don't believe their lawyer (yes, its really true). If you tell them the tests are accurate, and its going to prove their guilt, they aren't going to believe you. Maybe some just feel like they don't have anything to lose, and want to roll the dice - even the odds against them are astronomical.

While I've seen the former, and generally attribute it to a problematic psychological state, it's beyond the ability of a criminal defense lawyer to address.  We can speak with our clients until there are no more words left, but if they insist on providing us with misinformation, we are left with no choice but to work with it. 

In many instances, reason compels us to ignore the client's pleas of innocence and not engage in a strategy that will conclusively prove our clients' guilt.  Of course, this requires the lawyer to make a judgment call as to the accuracy of the defendants information, and we may be wrong in our assessment.  This could well be the most serious error a defense lawyer can make, believing our client is lying to us when he is telling us the truth, even though it may appear to be so outlandish that its strikes as impossible.

But if we accept the defendant's claims, and they prove false, resulting in our creating the very evidence that destroys any possibility of a successful defense, we want to bang our head against the wall.  Even though we may not be omniscient, the notion that we have locked the prison door on our client is something that few defense lawyers can shake off.  It's just not what we do, and we take failure hard.

I think there's a corollary to Walter's second point, where clients grasp at straws in the hope that the test will somehow produce a false negative and exonerate him.  After all, if he's going down anyway, why not bet the long shot?  The corollary is that defendants, for all years that Perry Mason was broadcast on television, harbor a belief deep down within their darkest heart that criminal defense lawyers are still lawyers first, vested in the system, and will abandon their zealous representation of defendants if they believe they are guilty.  

Defendants want us to believe they are innocent, and by so believing go to extreme lengths to win their case. 

Somehow, our belief that they are innocent will push us to find that magic bullet, that secret key, that will save them from their fate.  It's not merely that they do not subscribe to the idea that we defend people who are guilty just as hard as innocent, but that we move heaven and earth for the innocent, while the guilty only get lip service and a bill for legal fees.  This is a harshly cynical view of the law and criminal defense lawyers, but it comes from a select group of people whose lives are the very foundation of cynicism.  Can you blame them?

The element of trust between lawyer and client is fundamental to our ability to defend.  But it isn't always an easy thing to develop, particularly for lawyers who do higher volume of representation.  Trust takes time.  Trust takes communication.  A half hour with a client isn't sufficient to create a bond, where the defendant will believe that his attorney is really there to defend him, guilty or not.  And if the client doubts that his lawyer is on his side, and happens as well to be guilty, all forms of mischief can follow.

We may not be able to improve the situation for clients who are psychologically impaired, and believe themselves innocent in conflict with reality, but we can help those who doubt that criminal defense lawyers are really on their side by taking the time necessary to develop a relationship of trust.  Some will be easier, and some will never buy into what we do.  But as long as we're representing criminal defendants, they must recognize that guilt and innocence are wholly irrelevant to our representation.  And some criminal defense lawyers could stand being reminded of that from time to time as well.

It's not always a pleasant task, developing trust with certain clients, and takes time away from the other tasks that keep our days full, but may ultimately prove key in making the decision of whether to demand that the DNA in a rape kit be analyzed before the trial.  We need to make sure our clients understand that we are better at creating a reasonable doubt of guilt than proving guilt conclusively.