Gerry Spence, the renowned attorney from Jackson Hole, Wyoming, referred to it as “guilt by client,” where defense lawyers are often looked down on by everyone because of allegations made against their clients. Despite the presumption of innocence, many people believe that a person must have done something simply because he or she was charged with a crime, that there must be actual facts establishing guilt simply because a person is charged. Nonetheless, this is not the way it is supposed to work. When controversial French lawyer Jacques Vergès was asked how he could defend clients such as Klaus Barbie, the accused Nazi war criminal known as the Butcher of Lyon, Vergès stated, “[d]efending doesn’t mean excusing. A lawyer doesn’t judge, doesn’t condemn, doesn’t acquit. He tries to understand.” Vergès explained, “I don’t defend the crime but the person who committed the crime”. That is the way it is for defense lawyers who have taken an oath to uphold, protect, and defend the U.S. Constitution and to zealously represent the rights and interests of their clients.
Vergès thought it to be wrong and dangerous to believe that the rest of us are impervious to the forces that shaped those who have been accused of crimes, and in order to properly defend a criminal, a lawyer must restore the client’s dignity and present his or her truth. “The profession of lawyer is not only the exercise of a certain technique,” Vergès has said, “it is also a way of coming to terms with the humanity of all men, guilty or not.” Vergès wasn’t defending Barbie’s actions, his values, or his character; he was attempting to explain Barbie’s truth. The right of every person to be defended is sacred, as is the presumption of innocence until a judgment has been pronounced.
The Right to Counsel, Even for the Unpopular
A criminal defendant’s right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the “assistance of counsel” for the accused “in all criminal prosecutions.” This means that a defendant has a constitutional right to be effectively represented by an attorney during trial. It also means that if the defendant can’t afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant. See Gideon v. Wainwright, 372 U.S. 335 (1963). In Gideon, the Court held that the Sixth Amendment’s guarantee of counsel is a fundamental right essential to a fair trial and, as such, applies to the states through the due process clause of the Fourteenth Amendment.
The best criminal defense attorneys will do whatever it takes to challenge prosecutors on their allegations, while at the same time conducting their own investigation of the facts to ensure that they understand the case better than the prosecutor does and, in some cases, better than the defendant. Criminal defense attorneys need to be the top experts in that courtroom, as juries and judges will appreciate the expertise.
The oath that we take as lawyers to support the U.S. Constitution, and the constitution of our state, and to faithfully discharge the duties of the office of attorney according to the best of our ability, is often overlooked by most attorneys, judges, and the lay public. Our responsibilities as counsel include not only providing zealous representation, but also ensuring that our clients’ rights and interests are safeguarded in the process. It means being an independent advocate who is not conflicted or fearful to fight for due process, even when the position is controversial. Our mission as attorneys is to safeguard democracy. An important part of our responsibilities is to represent both the popular and the unpopular.
As the late Michael J. Kennedy once said, “the way we measure the value of our justice system is how it treats society’s pariahs. It’s easy to treat the popular people well.” Kennedy was a renowned civil rights and criminal lawyer who championed lost causes and deeply unpopular defendants, such as organized crime boss John Gotti Sr., head of the Gambino crime family in New York City; Huey P. Newton, the revolutionary African American political activist who co-founded the Black Panther Party in 1966 and was involved in a shoot-out that led to the death of a police officer and who later was accused of shooting a woman, leading to her death; Timothy Leary, the LSD guru to a generation; and Jean S. Harris, the convicted killer of Dr. Herman Tarnower, the Scarsdale Diet doctor.
Kennedy rose to prominence in the 1960s as one of the radical lawyers who championed unpopular issues and unpopular persons. He fought against the abuses of corporate and government power in that era, and against those from the so-called establishment. Unfortunately, when we walk into a courtroom today, it seems that some judges and adversaries are oblivious to the messages that came out of that era. But we can incorporate the meaning of those messages into our advocacy and lifestyle.
The soul searching involved in representing the unpopular defendant is not new, but the principles motivating attorneys to do so also remain constant. In 1770, British soldiers were charged with murdering five Boston residents in what became known in our history as the Boston Massacre. Few were willing to step to their defense. One who did was our future president, John Adams, then a prominent lawyer, who agreed to defend the soldiers in the face of public outcries for mob justice. He did not defend the British soldiers out of love for their cause; rather, he defended them out of his love for the cause of justice and his fervent belief that anyone accused of a crime has a right to counsel. He recognized the prominent need to protect an individual’s rights above all else, even in the face of overwhelming adversity.
Our Own Experience Representing Unpopular Clients
Our firm has been faced many times with representing defendants who were thought to be “that guy,” and we have continued to adhere to the principles described above. In the matter of Florida v. Ronald Straight, Jacksonville, Florida, 397 So.2d 903 (Fla. 1981); 454 U.S. 1165 (1981); 422 So.2d 827 (Fla. 1982), our firm acted as pro bono counsel for Ronald Straight. This was a death row case, where our firm secured an affidavit from the co-defendant attesting to Straight’s innocence, and also secured other mitigation evidence never before obtained throughout the state court proceedings or during the nine years that Straight was on Florida’s death row.
In People of the State of New York v. L. Desma, First District Court, Nassau County, Docket No. 034089/97 (1997), our firm represented a Haitian Hofstra University student charged with the rape of a Caucasian co-ed. On November 25, 1997, the grand jury returned a “no true bill” against the defendant. All charges were dropped. The defendant was released from custody on November 26, 1997.
In People v. Richard Warren Williams, 181 A.D.2d 846, 581 N.Y.S.2d 400 (2nd Dept. 1992) (Nassau County, County Court, 1974–present), the defendant was convicted in 1978 of the 1974 kidnaping of Jack Teich. This was the largest kidnapping case in U.S. history because the ransom of $750,000 was never recovered. After nearly 20 years, the defendant obtained a reversal under Batson v. Kentucky, 476 U.S. 79 (1986), because a prosecutor (who later became a New York Supreme Court justice) picked a jury on racial grounds. Our firm represented Williams on his retrial, and we won bail reduction from $5 million to $100,000. The client received open-heart surgery at county expense and, with a Serrano plea, was sentenced to time served.
In People v. Curtis Harris, Nassau County Indictment Nos. 57785 & 59972, the defendant was charged with murder, and while awaiting trial in 1984 he and his co-defendant attempted to escape. They were involved in a shoot-out with court officers. Harris was shot in the head during the melee. Several court officers were wounded. Our firm represented Harris during his trial for murder and attempted escape. He was convicted of murder and pled guilty to attempted escape, receiving a life sentence. Our firm also represented Harris during his appeal of the intentional murder charge. In that matter, a writ of habeas corpus was granted on grounds that would later be the basis for Batson v. Kentucky (prosecutor exercises peremptory challenges in a racially discriminatory manner). Our firm made the objections in 1984 and 1985, 16 months before Batson was decided by the U.S. Supreme Court. Harris’s intentional murder conviction was ultimately reversed in 2003.
In People v. Nathan Powell, County Court, Nassau County, 2008 NY Slip Op 07693 (55 AD3d 632), Powell, a filmmaker, was accused of killing his partner, Jawed Wassel, an Afghan who supported Osama bin Laden and said that “America deserved the 9/11 attacks.” Powell and his partner allegedly fought in Powell’s Long Island City apartment over profits from the Oscar-winning documentary Fire Dancer, a movie about women in Afghanistan, and over Wassel’s views about America. Wassel allegedly attacked Powell and was killed in the struggle. Powell allegedly dismembered his body and was arrested in Nassau County when he tried to dispose of the body the next day. Our firm represented Powell. In 2003 he pled guilty to a reduced charge of manslaughter in the first degree and accepted a determinative sentence of 20 years. The prosecutor agreed to the reduced charge based on Powell’s “extreme emotional disturbance” at the time of the crime.
In People v. Pacheco, County Court, Nassau County (Hon. Donald Belfi), 832 N.Y.S.2d 248 (N.Y. App. Div. 2007), the defendant, Manuel Pacheco, was arrested in California and extradited to Nassau County in 2002 for a girl’s 1984 murder. The detective originally investigating the murder had believed that he lacked probable cause to arrest the defendant. The murder investigation continued through the defendant’s residence in California. He was arrested in Los Angeles in March 2002 after questioning by Los Angeles and Nassau County police detectives and extradited in June 2002. After a Huntley/Singer hearing, the court ruled that there was no Singer violation for the 18-year delay in arresting the defendant for the 1984 murder, finding that the police did not have probable cause to make an arrest until after certain interviews conducted in 2002. Citing People v. Vernace, 278 A.D.2d 169 (1st Dept. 2001), the court, noting the defendant’s ability to move freely and take up residence in California and other locations, concluded that contrary to giving the prosecution an unfair advantage, the delay in making an arrest made the case against the defendant more difficult to prove beyond a reasonable doubt. Our firm represented Pacheco at trial. The defendant was charged with two counts of murder in the second degree, including intentional murder and depraved indifference homicide. The defendant was tried as a juvenile and convicted of intentional murder but acquitted of depraved indifference.
Our firm represented Dominick Mongelli in a significant federal and state investigation involving a double homicide in Suffolk County. Mongelli testified against the defendant in People v. Russo, County Court, Suffolk County (Honorable Gary J. Weber), 1998 N.Y. App. Div. LEXIS 2936, 248 A.D.2d 648, 669 N.Y.S.2d 947. The defendant, Charles Russo, also known as Charlie Corona, received a sentence of 62 ½ years to life; Mongelli was not prosecuted.
Due Process as a Human Right
Notwithstanding the fact that a defendant is “that guy,” the right to a fair trial is a human right, and the right to counsel is a necessary component. The right to a fair trial is engrained in our ideal of justice. Defense lawyers are expected to dispute evidence as part of due process and guide a path to the truth. The criminal justice system holds the exclusive power to take the freedom away from those accused of crimes, and a criminal conviction is life altering for the accused. Zealous legal representation is often the only hope for defendants facing criminal prosecution to secure their right to a fair trial. Further, understanding the circumstances and the context of a crime can lead to mitigating factors for the defendant.
In the final analysis, in measuring our advocacy, we think of the Declaration of Independence, which reminds us not only that our nation was founded on the basis of a revolution, but that each of us has a duty to oppose tyranny and oppression. When you are criticized for representing “that guy” or “that woman,” we suggest that advocacy take you beyond empathy for your client and ultimately to a pronounced respect for the cause of justice and a belief that anyone accused of a crime always has a right to due process and equal protection under the law.
Published in GPSolo, Volume 37, Number 1, January/February 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.