There is a common misconception that criminal defense lawyers spend all their time in court getting guilty people off. Because of movies and television shows that so often inaccurately depict what we really do this is understandable.
What I do is represent defendants in criminal court to make sure the law is applied to them correctly. You might want to know what this means. Let me explain.
I can break down my felony clients into one of three basic categories.
1. Likely to plead guilty: these clients are typically factually guilty and the police work that led to their arrest was proper. There’s not much a criminal defense attorney can do with these cases, so you negotiate as good a plea deal as possible based on the facts of the case and the client’s criminal history. For minor felonies and for first time offenders, I am looking for probation and usually get it. For more serious crimes and for those with prior felony convictions, I am trying to get the fewest years in prison as possible, or perhaps boot camp in the alternative. Keep in mind that I have an ethical duty to represent my client’s interest, so getting the best deal possible is something that I have to do.
2. Fourth amendment issues: these cases involve what I believe was an improper arrest and/or search. Because of my ethical duty to my clients, if I think their rights were violated, I have to file a motion and conduct a hearing on that issue. In these cases, I am defending not only my client but also the constitution. It is really only criminal lawyers who keep the fourth amendment alive. The police are always trying to chip away at it, so we sometimes have to say to them, “Hold on. I think you’ve gone too far.” Then we let the judges decide. This is a very important part of the practice. And sure, in many cases, we are advocating on behalf of someone factually guilty--the drugs were found in the car but the unlawful police work ruined the government’s case. So, these are really police issues. And trust me, you want us in court keeping the fourth amendment alive; it’s good for everyone.
3. Case needs to be tried: believe it or not innocent people are charged with crimes all the time. Some of them do actually plead guilty. Why? Because if they risk going to trial and lose, they will get more time in prison than if they just plead. It’s crazy sounding, but unfortunately true.
Suppose they have a Class X (most serious) charge and a Class Four (least serious) charge. At trial, should there be a conviction on the Class X, a prison sentence of six to 30 years follows. And you never know what will happen at trial. So, the prosecutor offers a plea deal on the Class Four charge of two years. The defendant has a choice: take two for sure or risk 30. This is not a pleasant situation in which to find oneself.
And this situation gets tricky for the defense attorney, because the client will always ask what they should do. Always. Perhaps the best skill a trial lawyer needs to have is a correct assessment of the case. While it is true that anything can happen at trial, a good defense attorney should always know whether the case should ever see a trial. You have to know the rules of evidence inside and out, so that you can look at the file and know exactly what the jury will see and hear. The client might indeed be innocent, but the evidence might be too overwhelming to risk going to trial. A good attorney will know this and advise the client accordingly.
My very first jury trial involved over ten pounds of marijuana. The government had a problematic case for several reasons. On the first day of trial, they offered my client four years in prison. As charged it was a Class X felony with six to 30 years upon a guilty verdict. He asked me what he should do. I told him, "This is your decision, but I think we have the better case, and I think the jury will see it that way." He refused the deal and was acquitted.
Some cases with innocent clients have to go to trial because there is no plea deal that’s acceptable to an innocent defendant. A murder charge, for example, is not going to be plead down to anything near acceptable, so these cases have to be tried. Many guilty people will go to trial on serious cases because it’s possible they’ll get lucky with a favorable jury. I, personally, don’t do these types of cases. I don’t represent people charged with violent crimes if they are actually guilty. I want no part in putting murderers back on the street, but public defenders have no choice. Because of the ethical duty we have to clients, if the client insists on going to trial, the case goes to trial. As a private attorney, I have the luxury of deciding which cases to accept. Public defenders have cases assigned to them, so they are in a much different situation.
There could also be a need to try a case if the client has been incorrectly charged by the prosecutor. For example, let’s say I have a client stopped by a state police officer and whose vehicle was searched and found to have in it a couple kilograms of cocaine. Then the state charges that person with drug trafficking, which heavily criminalizes bringing drugs into Illinois. The first thing I would do here is to see if the traffic stop and/or search was unlawful. Let’s assume I lose that fight and need to think about a plea deal.
Unless the driver admitted to bringing the drugs across the state line, that trafficking charge is not very easy to prove. The driver could have picked up the drugs in, for example, East St. Louis and thus not be technically guilty of trafficking. There’s some circumstantial evidence, but proof beyond a reasonable doubt is going to be very difficult to pull off. There are, to be sure, other charges that would be easy guilty verdicts. But trafficking that amount of cocaine carries with it a more severe sentence (minimum of 12 years and a max of 60). In this case, if the prosecutor wouldn’t agree to a plea deal on a different charge, say manufacture and delivery (minimum six years), for instance, I might try this case just to win on the trafficking charge.
Attorneys are often called counselors; and it's not for nothing. This is part of the job that's rarely discussed. We have to assist our clients in making decisions that in many cases will affect them for the rest of their lives, and they are relying on our knowledge and expertise in making these decisions. This is a weighty responsibility that cannot be taken lightly and is probably the part of my job from which I get the most satisfaction. I advise every client as if they were my child. I only want what's best for them.
Hopefully now you'll have a better understanding of what a criminal defense lawyer does. Facing a felony charge is a serious life crisis, especially if you're innocent. And the defense attorney is the only person in the entire criminal justice system working for the benefit of the defendant. I have in so many cases become part of my client's family, and this is something I have never taken lightly, because everyone involved is trusting me; not trusting me to get someone guilty off, but trusting that I will work hard to get the best possible outcome.
That's all I can do.