Defending the “Guilty”

By David R. Lundgren

“Would you defend someone you knew was guilty?” Far and away, this is the most common question I’m asked by close friends, family, acquaintances, and anyone else who hasn’t had exposure to our criminal justice system. Admittedly, it’s a question I asked my younger self prior to becoming a criminal defense attorney.

My response is always, “Of course.”

The follow-up question is invariably the same, “But how?”

“With the same zeal and passion I would for someone I believed were factually innocent.”

The unsettled expression of the person standing across from me at this point in the oft-repeated conversation is perfectly understandable. Many of them probably imagine me scheming behind a desk to get a murderer off on a technicality or pitching a story to a jury with my fingers crossed behind my back. But, that’s not what it is at all.

First, it’s important to note that the term guilty is a legal term of art and there are two types: factual and legal. Factual guilt means that the person committed the acts for which they stand accused. Legal guilt means the government has proven they committed those acts beyond a reasonable doubt after the process due under our laws. The two often overlap, but not always. A person can be factually guilty, but never be convicted in a criminal courtroom. The converse is also possible; a person can be factually innocent, but be convicted of a crime in a criminal courtroom.

For example, imagine that two people are sitting in a room with a loaded gun on the table. There are no witnesses, no cameras, no microphones – just the two people and the gun. Person A happens to be a criminal mastermind and is an expert at staging homicides to appear like suicides. He murders Person B and then arranges the room in such a fashion to make it appear as if Person B called it quits on himself. Person A is factually guilty of murder but won’t be legally guilty due to his deviant nature and criminal skill. Now imagine the converse where Person B is actually terminally depressed and does kill himself, but Person A is a hapless soul and has an overall inescapable guilty quality to his appearance and affect. In that scenario, he is factually innocent but will be legally guilty after he’s prosecuted and convicted.

The clearest example of this concept in the criminal process is the choice in plea a defendant can tender: “guilty” or “not guilty.” You’ll notice that a defendant is not required to plead innocence in order to move forward with the criminal process. By pleading “not guilty,” a defendant informs the court that he is not willing to admit guilt for the crime he is accused of and he is choosing to put the government to its burden of proof.

Legal guilt is only accomplished after the government proves a person’s guilt beyond a reasonable doubt in a courtroom. In order to accomplish this feat, the government has to comply with constitutional requirements, state and/or federal laws, and the rules of criminal procedure. These safeguards are put in place because our nation was founded first and foremost on the liberty of its citizenry. In order to convict a citizen of a crime and then deprive him of his liberty as a consequence, the government is held to the most exacting standards.

And that’s the way it should be. In my role as a criminal defense lawyer I am unabashed in my sentiment that the only guilt that matters to me is legal guilt, not factual. In that regard, the most important questions to me are what evidence the government has against my client, what it can prove in a courtroom, what it cannot prove in a courtroom, and how the law is applied to those proven facts.
I have no qualms about exposing the weaknesses in the government’s case in order to obtain an acquittal or dismissal even if I believe my client is factually guilty. Cue: ghastly apprehension about my morality and character. However, morality and justice do not necessarily go hand in hand. Our laws are man-made, our courts are man-made, and the process is man-made. The system is not perfect, but it works far more often than it fails. As long as I play by the rules, however aggressively, diligently, and zealously, and I make sure the government does the same, the outcome is what it is meant to be. The courtroom is not a church and I am not a priest. Everyone must answer for their actions at some point and in some manner or manners. For some that means a criminal conviction, for others, not. Criminal defense attorneys happen to be just one variable in that equation.

There’s no duty to self-report criminal behavior. In fact, the Fifth Amendment in the Bill of Rights specifically protects our nation’s citizens from being compelled to self-incriminate themselves. This, along with the myriad of other constitutional protections and the presumption of innocence, embody our nation’s founder’s intent to jealously guard its citizens’ liberty. The bedrock principle of our justice system is articulated well by the Blackstone ratio, “It is better that ten guilty persons escape than that one innocent suffer.”

To deny anyone a defense, even those who may be factually guilty, would be to put everyone’s liberty at risk. And that is why my answer to the often inquired “would you defend someone you knew was guilty,” will always be, “Of course.”