Mimesis Law
9 April 2020

Defending All of the People All of the Time

Nov. 12, 2015 (Mimesis Law) — For a while, it was possible to imagine that our client was factually innocent, that he really hadn’t killed that woman.  Not that it was likely, mind you, but plausible.  Maybe a 5 per cent chance he really was the wrong guy.

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I represent people charged with crimes or convicted of them.   Sometimes they want to convince me that they’re innocent.  They think that if they say it often enough, I’ll believe them.  Then I’ll use the special secret handshake with the judge and the prosecutor, the one we learned at Hogwarts law school, the one that will make the charges go away.  (They’re wrong.  That handshake is only good for getting them to pick up the tab at the bar when I buy very cheap scotch.)

I spend a lot of time explaining to clients that it doesn’t matter whether they did whatever.  Trials are not about truth.  They’re about proof.  And proof, as I find myself saying with boring regularity to clients and their families, is simply what the jury will believe.

There’s a hope, maybe a fantasy, that proof and truth will match up.  And sometimes surely they do.  How often?  We know of errors.  Despite studies and analyses, nobody really knows what that error rate is.  Of course, it matters.  But maybe the uncertainty is better.  After all, the system survives on the assumption that proof comes close enough to truth with enough frequency to keep going.

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So, as I said, there was some small but realistic chance that our client really didn’t do it.  The possibility gave us something to work with as we tried to figure out how best to work the case so that even if the jury found him guilty across the board, they’d balk at sentencing him to die.

Then the bottom fell out.

It doesn’t matter how.  But it became clear to us.  We’d lost the 5 per cent chance.

And (I’m getting to the point, hang on) we lost one member of our team.  Oh, he didn’t flat out quit.  Didn’t ask the court to let him off the case.  He just closed up.  If he couldn’t believe in the client’s innocence, then he couldn’t, wouldn’t, put himself out.  He believed in the case just as long as he could believe in the client’s innocence.

That’s just not how it works.  Innocence, factual innocence, is essentially a distraction in our business.

For one thing there’s the stubborn reality that most of our clients are factually guilty.  I don’t know the percentage, and they may not be guilty of exactly what it is that they’ve been charged (and frequently overcharged) with.  But they’ve mostly done something that’s at least a second cousin of what the grand jury said they did.

But, and this is key, for our purposes it doesn’t matter.  We, who are criminal defense lawyers, defend.  We don’t have to prove anything. The burden of proof is ever and always on the government.  It’s the government that must prove, prove beyond a reasonable doubt, that our client did whatever.  Our job is to deny.  To show the failure of that proof.

Oh, we might take on a bit of proving from time to time.

Ladies and gentlemen of the jury.  The prosecutor just told you that my client was standing on a street corner in Cleveland selling drugs at 2:45 that morning.  He’s wrong.  My client was, in fact, in prison in Idaho at the time.  The warden will testify to that.  The records will be introduced.  You’ll have no doubt that whatever happened in Cleveland that morning, this man was not there.

But that’s the peculiar facts of the case.  It’s not what we do.  Because innocence isn’t what we do.  Or what matters to us.

Except for those to whom it does matter.  Dean Narciso in the Columbus Dispatch:

Attorney Bradley Koffel uses polygraph tests to screen out potential nightmare clients, especially those charged with sex crimes.

“An agreement with our staff is that we won’t take any sexual-conduct cases unless there’s a reasonable probability that our client is innocent,” Koffel said.

Several times a month, he and his staff, in offices near Grandview Heights, interview prospective clients “to establish a smell test,” followed by a polygraph. Those who appear to be lying are shown the exit.

“We’ve had guys come in and fail polygraphs, and we never see them again … we’re done with them,” Koffel said.

Good for “the firm’s image,” Koffel told Narciso.  Which I suppose is true.  He’s the guy who, unlike the rest of us, represents only innocent folks.  Folks who’ve been vetted by the machine.

Maybe Koffel believes in the magic box. Jurors certainly do, which is one reason their results mostly aren’t admissible in court.  That and the fact that the results are, how can I put this nicely?  Got it.  They’re bullshit.

How do we know they’re bullshit?  Let me tell you about Chad Dixon.

Dixon was prosecuted by the feds for heinous crime of teaching people how to beat the polygraph.  What did he teach?  How do you fool the machine?  For $1000 or so, he’d tell them,

Relax and breathe normally.

Damn.  The feds thought this was really dangerous because some of Dixon’s customers hoped to apply for federal jobs, which meant they’d be polygraphed.  And would pass.  Regardless.

On the other hand, someone who gets all stressed?  Flunk.  Even telling the truth.

The judge who sentenced Dixon got it exactly right about the polygraphs.

They’re very useful tools until you turn them on.

As I said, maybe Koffel believes in the box.  Maybe he wants only to represent people he believes are factually innocent.  Whether that’s so, or it’s just a cynical marketing ploy, the result’s the same.  He’s telling everyone that the rest of us are whores but he’s a champion.  And he’s assuring those clients who want to convince him that they’re innocent that he in fact believes them.  As if that makes a difference.

But there’s also this.  We’re criminal defense lawyers.  And proud to be.  Go over to the website of fellow Fault Liner Noel Erinjeri.  Check out the picture.  That’s our job.  It’s who we are.

There are lots of reasons we do this work.  We defend our clients because we defend.  As we defend our clients, as we insist that the government live up to its obligations, we defend the Constitution.  And as we do that, we defend everyone, the innocent and the guilty.

Don’t need no polygraph for that.

8 Comments on this post.

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  • Marc Reiner
    12 November 2015 at 11:16 pm - Reply

    Perhaps it’s a crap analogy but whether a client is guilty in fact, whether the Dolphins won’t make the playoffs again, or whether my offspring will ever graduate high school has nothing to do with the need to diligently rep my client, pray for an O line in Miami, or build idols to scare away laziness; there’s a need and a desire. Who cares if the client is innocent? He’s not paying to absolve his soul but to avoid a conviction or prison. It’s a job; high stake but no heavy lifting and generally climate controlled buildings.

  • MoButterMoBetta
    13 November 2015 at 8:43 am - Reply

    I have always been amazed that polygraphs are inadmissible, but bite mark bullshit is admissible. At least the polygraph is accurate sometimes.

    • Jeff Gamso
      13 November 2015 at 9:04 am - Reply

      So is a stopped clock – twice a day.

  • nidefatt
    13 November 2015 at 9:49 am - Reply
  • David M.
    14 November 2015 at 6:32 pm - Reply

    Gamso, you keep using the prison-in-Idaho example. Is there a story there?

    • Jeff Gamso
      14 November 2015 at 9:32 pm - Reply

      Oh for the days of my misbegotten youth!

      Nope. Sorry. It’s just the example I’ve taken to in blogging and with clients too.

      At one time I used “private audience with the Pope” (I’ve never done that, either). But my clients are more likely (though, really, how many have ever been there – or Montana or Wyoming, for that matter?) to have the Idaho prison thing in their background.

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