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Published: 2008-03-26

How Can You Defend the "Guilty"?



When I speak publicly about my work as a criminal defense lawyer, I am often asked "How can you defend someone you know is guilty". The question actually has different meanings to different people. To the young, it often presupposes that the "guilty" person should simply "take what's coming". To many others the implication is that it requires moral depravity on the part of the lawyer to undertake such a task. To the person accused of a crime, especially the person who is facing incriminating evidence, the need to post bail, and find a lawyer, the question takes on a whole new meaning. "What can you do for me?"

For now, I will skip the answers I give to the first two interpretations of the question, and focus on the last. A person accused of a crime has many decisions to make, and a short time to make them. He is faced with advice from everyone he tells about his problem, and often receives bad advise from those he trusts the most.

I don't care if a person is "guilty" or not. Sometimes the answer is obvious. Often it is not. Sometimes, I would prefer not to know. Whatever the facts of any particular case, my job is to provide the best defense I can. I am responsible for the identification of possible defenses, and defense strategies. I must discover, organize and prepare the evidence, and research the applicable law. This not only includes the law describing the crime alleged, but also, and often more important, the law as it relates to the evidence the "people" will be able to use against us, and the law that may prevent us from using important evidence.

The complex and confusing series of sentencing rules and laws are also important to understand in order to fairly evaluate the "people's" settlement offer. What is the "exposure"? If we go to trial and loose, what's the worst case? What are the mitigating and aggravating factors that might be considered if we loose, or if we enter a plea leaving desecration to the judge, and a probation report.

If someone seeking a lawyer speaks to two or three lawyers, he will probably hear fees quoted that differ dramatically. Often the "best price" buys little more than "holding the defendant's hand" while he pleads guilty. I have also seen very high prices paid for a lawyer with an impressive reputation, only to see what appeared to be second rate work.

I've mentioned case preparation for a trial in other articles. Here, I would like to focus on the case where I know from the outset that a trial is not the wisest course. Just because I know a crime has been committed, and that my client did it, doesn't mean that something can't be done. Sometimes there's a little, sometimes there's a lot. Even when you know a trial is not likely, it is still important to prepare as though there will be a trial. The need for preparation is equally important in every case.

A good example is a man I shall refer to as Robert. I have simplified his story considerably. Robert came to me about five years ago. At that time, he was in his 50's. He had been married for many years, but about eight years before I met him, he became dissatisfied with his life. He was employed as a plant manager for a large multinational company, having many millions of dollars worth of assets under his control and management. For 20 years, he was an honest and loyal employee, rising to the highest position in one of the companies hundreds of facilities around the world.

Robert had, within his discretion, the authority to write checks on the company's account for up to ten thousand dollars a month, for miscellaneous company needs. He also had the authority to obtain the services of a wide variety of company needs, which were then paid through the company's normal procedure.

After about twenty years with the company, he noticed that one of the company's suppliers had gone out of business. The business seemed lucrative, so he decided to start his own similar business, and let his employer start sending him checks. This went on for a couple of years, until another business, much more lucrative than the last also closed. The beauty of that business was that it could be performed without any investment, since the employer already had the equipment to do the testing required. He could do the work, without the hundreds of thousands of dollars required to buy and maintain the equipment. A further problem however, was that the law required the work be done by an independent company.

For over eight years, both of these scams went undetected. At first he spent the extra money on home and family. He soon got into the habit of taking attractive waitresses on "dates" to Paris. All of this may have gone undetected, until he decided to give one of his waitresses a regular job at the plant. She got a full pay check, but only went in on rare occasions. On one of those rare times at "work", someone started asking questions. The whole "house of cards" came down.

Over eight years, he had managed to take more than $1,000,000.00. When I met him, most of it was gone. He had managed to save a $100,000 .00 defense fund. He also, took full advantage of an "employer matching" supplemental pension plan worth another $200,000.00.

While the criminal case was still under investigation, I arranged a civil settlement with the company, and with the bonding company who made up some of the company's losses, for ten cents on the dollar. While he had paid most of the taxes, I used most of the rest to pay the rest of unpaid taxes. His exposure (maximum possible time in prison for the case as it was charged) was 18 years. I made a deal for four years. He was out in two years. While on parol, he had no restitution orders, because of the civil settlement. In the end, he still had his regular company retirement, and, he got out of prison, several years before he could begin collecting it. I argued to the judge who did not want to approve the settlement, "He has chosen to spend his retirement, to buy back a small part of his self esteem."

The point I wish to make, simply, is that even under what seem to be horrendous circumstances, ingenuity, can often turn a disastrous case into something at least manageable. Robert will never have a position of trust again, but he did get out of prison young enough to start life over. The company, and the state got reimbursed money they otherwise would not have received. I believe I accomplished a valuable service for all concerned. While the money involved was far more than most other cases, the same and related principles can be applied to "minimize the damage".

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.