Monday, December 21, 2009

Can The State Prove Its Case?

I am not sure when it happened but at some point in the last few months I stopped wondering if my clients were innocent and instead started asking the question "can the State prove its case?"

It appears I might have gone to the dark side of being one of those awful sleazy criminal defense attorneys. Some might say my mission is to put criminals back on the street. Or that I make my living getting guilty people off. And last but not least, that I am in this for the money and care about nothing else. I have to admit that at times I have even suggested possibilities like these to myself. How can or do I reconcile what I do with any sort of internal moral compass?

I have gotten people off that were factually guilty. But apparently the American system of criminal justice ranks our constitutional rights fairly high. Unfortunately this only works in the real world sporadically. I didn't help write the Constitution.

Additionally, I have not authored or joined any higher court (or any court) opinions that continue to shape and mold the 4th Amendment. I play by the rules that are handed to me and everyone else. I interpret what I think the law means and apply it to my cases. The trick is getting a judge to agree with my interpretation of the law and its application to this case.

I owe my clients a professional and ethical duty as an advocate. This means that if I think their rights were violated I must seek a remedy. That remedy is often a dismissal of their case. Now ask: am I simply getting someone off or am I defending the Constitution? The answer to that question depends on where you're sitting. Literally.

Depending on the day and the case, I am usually somewhere in the middle myself. I don't hold myself out as a great defender of American liberties on a fundamental level. I am not a card carrying ACLU member. I like a good helping of personal rights, but not too much. On the other hand, it's not just about winning. It's actually a little of both. In my experiences so far, criminal defense attorneys lose. And we (or at least I) lose a lot. But not all losses are equal, nor are the wins.

Anything that doesn't go my client's way, I consider a loss. Preliminary hearings, bond reductions, motion hearings, plea negotiations, etc. But I have learned to be very realistic about my cases. There are cases that can't be won. There are bonds that won't be lowered. There are motions that will be denied. And there will be plea deals that my client won't consider a deal.

Returning to the question: can the State prove its case? Well, in Cook County, City of Chicago, the State has a lot of cases to prove. I estimate there are about 12,000 open City of Chicago felony cases at any time. That is an enormous number. I don't know how many private defense attorneys are here, but I see the same 20 or so weekly. Why so few with so many cases? Honestly, there's little money in the work. I eat daily, but I am thin. I digress.

The burden of proof of guilt beyond a reasonable doubt rests on the State's shoulders. If the people bring the charge, they should be prepared to prove up their case. And I think my job as a defense attorney is to make sure the government is held to that standard.


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