Tennessee Criminal Defense

How Can You Represent Those People?

Many criminal defense attorneys know that the one question sure to come up at family dinners and other gatherings is the one revolving around your defense of those accused of committing crimes.  Of course, that's not the way it's asked.  The question is usually posed like this "How many people did you get off today Josh?", or "Are you still working for the dark side?", or "How can you honestly represent people that you know are guilty?", or "Do you ever have a hard time sleeping because of the criminals you get off?"  Of course, the one thing every permutation of the question contains is an implicit statement that your client is not only wrong for their conduct but that they are bad people; people who need to be shunned, punished, publicly flogged.  There is no mistaking the fact that many of the people that I represent have done wrong. However, I would challenge anyone out there reading this to tell me that they have never done wrong themselves. I can hear the common retort now, "I may have done wrong, but I have not broken the law." To be sure, it is entirely possible to live one's life without ever breaking the law. However, I again would challenge those who claim they have never broken the law to tell me, honestly, whether they have ever broken the speed limit. Whether breaking the speed limit is considered a major or minor offense is of no regard. The law is the law.  

 But of course, I am not concerned so much with speeding infractions, or failures to use a turn signal, or not putting your headlights on when it's raining and you're using your windshield wipers. And I am quite certain that those who chastise me at family gatherings for what I do are not concerning themselves with those things either. No, they are the crimes related to drugs, violence, dishonesty. Those things we tend to think are deserving of a scarlet letter to be worn about the breast of the person as they travel throughout their life. Did you smoke marijuana when you were in college? Then not only are you a parasite on an otherwise civilized society, but we should crochet a bright red "M" and have it sewn on your jacket so the rest of the world can see just how dangerous you are.

 Sarcasm aside, the question still remains how I do what I do. I could give some long-winded answer about the United States Constitution, the nobility of such a document, the way civilized societies work within a criminal justice system, and the way enlightened people think. But that really wouldn't answer the question either. And, to some degree, it would be the answer anticipated by a large number of people. I am an attorney and I, therefore, must give some rambling answer filled with historic documents and analogies concerning the democratic process. But it is actually more fundamental than that. At its core, the question that the opposing sides of the criminal justice system seek to answer on a daily basis is whether, on the one hand, people are fundamentally good but subject to poor decision-making, or they are fundamentally bad and in need of correcting from the elites who lord over them. It was said to me many, many years ago when I was still a young prosecutor that a particular defense attorney did not represent criminals. I thought then (I was deeply ingrained in the prosecutorial ideology) that he was simply playing with words to make himself feel better. But as truth would have it, it was an accurate statement and one that I would come to appreciate more as I grew in my profession. You see, I have represented very, very few criminals. I have, on occasion, represented that person who has devoted the vast majority of their life to the pursuit of criminal enterprise. But those people are an anomaly. The vast majority of people I represent have never been in trouble before, are deeply disturbed by their poor decision-making that led them to their current plight, and want only to put a difficult chapter of their life behind them and move on. These people are not criminals.

 The problem that our criminal justice system has can best be described as singularly focused. Every problem presented to the criminal justice system is viewed as a nail for which the only reasonable approach involves a hammer. Think of it this way. The individual who has devoted years upon years to smuggling drugs into the country and then dispersing them in a network of organized crime is viewed the same, fundamentally, as the 21-year-old kid at the local college who smokes a joint Friday night after his midterm. To the prosecutor, they are both quite simply criminals. The size of the hammer used upon each of them may vary, but it will be a hammer nonetheless.

 So, when asked how I can justify what I do for a living, it is actually quite easy for me to do. I represent people who have made mistakes. I work with people who will pay for their mistakes. My representation of them is not to be seen as the equivalent of my condoning their actions. Remember, the greatest man to ever walk this earth responded to those who asked why he chose to eat with sinners thusly, "They that be whole need not a physician, but they that are sick."  

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