Most criminal defense lawyers grow callouses.  Not on their hands, as happens with people who actually produce something for a living, but on their consciences.  We have to, as no one can withstand a career of watching the wrong thing happen to the wrong person, day after day, colored over by fine sounding words, and maintain any semblance of sanity.  It’s hard to maintain balance in an unbalanced world.

But Gideon at A Public Defender, every once in a while, bursts through the shell that protects us from crying ourselves to sleep each night, and he’s done so again.

In this line of work, I don’t think there’s anything more heart wrenching that sitting across from a likely innocent client and having to tell him that there’s no way to prove that innocence and then watching him hold back tears and decide between two morbid choices: accepting the plea offer and spend the next 15 years locked up or go to trial and risk 60 years.

Sometimes I feel overwhelmed

Whether we admit it or not, we’ve all felt this way.  Frustrated.  Overwhelmed.  Failed.  This is when the platitudes fail to comfort us.  We just can’t seem to hide behind the legal jargon and dearly-loved axioms that are supposed to justify what we do, even when everything goes horribly wrong. 

But the part of Gid’s post that struck me hardest is “that there’s no way to prove that innocence.”  When a defendant looks at you straight in the eyes, explains why he didn’t do that with which he’s accused, and tells you clearly why he believes he can prove his innocence, chances are awfully good that there’s no way it’s going to happen.  Most of the time, it’s a matter of his word against someone else, and the gist of his “proof” is that someone is lying.  As hardened as most people are, he asks you with utmost sincerity, “can they do that?”  Can they lie and get away with it? 

As I’ve told many a client, there’s no red light over the witness chair that goes off when a witness lies.  Many, particularly cops, can say anything they want with impunity.  Many believe that their are on the side of righteousness lying because they believe the defendant guilty and the lie to serve a greater good, the conviction of the defendant.  They have no qualms about lying whatsoever.

Even to call it a lie is somewhat confusing.  It need not be a total fabrication, but just enough color around the edges to make their point and cover the gaps.  Testilying is nothing new, yet it doesn’t quite register with people until it’s you they are testilying about.

I cannot possibly remember how many times I’ve heard judges characterize evidence as “overwhelming” when it’s nothing close.  It’s the way judges create a record designed to preclude disagreement or reversal.  “But counselor, the evidence was overwhelming.”  Just say the word and so it becomes real.  For those who have never argued an appeal, you cringe when the appellate judge throws the word back in your face, “but counselor, the trial judge said that the evidence was overwhelming.”

Over the course of many posts at Simple Justice, I’ve made clear that no criminal defense lawyer worth a damn cares whether his client is guilty or innocent when it comes to doing everything possible within the law to win the case.  This really is how we approach our cases.  We fight just as hard for the guilty as the innocent, so there’s no benefit to feigning innocence to “motivate” us, particularly since it tends to backfire by denying us critical information needed to fight the charges.

And no, we don’t always know who is truly guilty and who is truly innocent, or where along the spectrum in between a defendant might truly fit.  But we do know when things have gone horribly wrong and when we were ineffective to stop it.  We are brutally aware of the limitations of the system, and our own limitations in making magic happen when it’s needed most.  Some lawyers are full of bravado, claiming to be magicians to make sure that no one leaves their office with money in their pocket, but even those scoundrels know, in their hearts, that the lie is only for cash.  They know their limitations too,  They’re just willing to sell their soul in the process, possibly a way to assuage their sense of failure through the comfort of money.  Maybe.

But every criminal defense lawyer with any sense of honor and integrity has felt exactly as Gideon does.  He is brave to admit it and give us a glimpse of honesty underneath the callouses.