When I first started doing criminal defense work a decade ago, family and friends would wonder how I could with a clear conscience defend guilty people. How is that standing up for justice? Although I do defend some guilty people, I would rephrase the question to, “Why would I want to defend those charged with crimes?” Notice that I did not say that I defend criminals because not all my clients are criminals. Not all of my clients are guilty of the crime for which they are accused. I am however a lawyer who specializes in being a defender of the accused, each and every time we face a trial.
Consider our client Keith, who was charged with reckless driving by speed for going 116 mph when he was in fact innocent. The officer pulled over the wrong person and Keith found himself on the defensive, facing a misdemeanor charge that normally lands people in jail. We tell of Keith’s ordeal and eventual victory here. You may be a law abiding citizen but still find yourself in need of a criminal defense attorney.
Or consider our other client who was charged with felony hit and run for leaving the scene of an accident when his large postal service truck clipped another person’s vehicle as he was making a turn. Let’s call my client Peter, for all we know, it could have been me. Peter did not feel the bump because of the size of his large truck. The police did not witness the crime but after they heard the complaint, they took out felony charges on my client. Peter had an excellent job with the USPS and was driving a company vehicle that was insured. He had no reason to run from an accident. After all, accidents happen on the road every day. But now Peter’s job and his freedom and liberties were on the line. Peter could lose his ability to support his family, lose his house, and end up spending time in jail. Imagine how your position on the need for criminal defense attorneys would change if you found yourself in Peter’s position.
As a traffic and criminal defense attorney, I am mindful that I am a guardian of the constitution. I fight to preserve the rights of individuals and serve as a check on the mighty forces of the government. It is a joy and privilege that I do not take lightly.
Our legal system isn’t perfect, but that doesn’t mean we shouldn’t try our best to achieve justice and aim for true justice. In American jurisprudence which has its roots in the Western Legal Tradition, we find the idea that a person is innocent until they are proven guilty. This means we like to err on the side of protecting the innocent.
Protecting the Innocent
William Blackstone, a preeminent English jurist that influenced the American justice system stated, “Better that ten guilty persons escape, than that one innocent suffer.”[i] This principle is also found in the writings of American Founders and follow the evidentiary principles that go back to the Old Testament Scriptures. Benjamin Franklin went further and argued that “it is better a hundred guilty persons should escape than one innocent person should suffer.”[ii]
Those who are more concerned about punishing the guilty are more likely to be less concerned about due process. But due process is vital in achieving justice. My great grandfather in China had his land confiscated by the Communists in power without due process and without regard to the rule of law. His pharmacy and the church he built were confiscated. My great grandmother was tortured and accused of wrongdoing based on phony charges.
The CATO institute has noted that communist leaders in China, Vietnam, and Cambodia would prefer that ten innocent men suffer rather than one guilty man escape.[iii] But they have it backwards. They value control and punishment over true justice and freedom.
This is why our concept of “proof beyond a reasonable doubt” as the burden of proof in criminal cases is so important. If there is any doubt in a judge’s mind at all, a defendant should get the benefit of the doubt and be exonerated. Each and every element of a crime needs to be proven.
Police officers will often joke with me at court when I approach them about my client. I’ll approach them before our bench trial and say, “I represent John Smith” and they would respond without hesitation, saying, “Guilty!” I know they are joking around with me, but their humor may reveal their subconscious assumptions. Let us all remember that not everyone charged with a crime is in fact guilty.
Most officers are not malicious but just as citizens make mistakes, police officers are human and make mistakes. They may be overzealous or take shortcuts. They may even do their job properly but the evidence at trial demands a not guilty verdict. The standard is probable cause to arrest but proof beyond a reasonable doubt to convict.
The government must bear its burden of proof whether it’s a relatively small traffic case or something as devastating as a murder. The rules of evidence and legal concepts like the presumption of innocence until proven guilty and proof beyond a reasonable doubt really do matter. Process and procedures matter.
An Innocent Client Convicted
A few years ago, I represented a man I’ll call Mike who was convicted of a DUI. To this day, I wholeheartedly believe Mike to be innocent. His arresting officer had received a Mothers Against Drunk Driving award in 2013 for making 79 DUI arrests. While most of my clients will acknowledge their guilt to me and know they deserve some punishment, Mike had insisted on his innocence and rejected a plea agreement that offered no active jail time. We put on a bench trial. Several witnesses testified that Mike was not the driver of the vehicle but was in fact the passenger. When the officer stated during the trial that he saw my client come out of the driver’s seat, my client looked at me and whispered, “He is lying.” At the end of the trial, the judge stated that he would believe the testimony of the officer over the testimony of my client and his friends, “who were probably drunk too.” The Circuit Court judge then sentenced Mike to 30 days of jail.
As his defense attorney, I thought of Mike every day that he was in jail.
Three months after this trial, the arresting officer on Mike’s case resigned his position with the Virginia Beach Police Department in the middle of an internal investigation. When he resigned, it all made sense to me. This cop was a bad apple. All his pending DUI cases were dropped because his credibility was now shot.[iv] The word on the street from the other officers was that this officer was doing unethical things and was forced to resign. Unfortunately for my client, he had already done his jail time and was too jaded by the legal system to try to overturn his conviction.
While Mike served only a few weeks of jail, the stakes are higher when the penalties are higher. As we seek justice, we remember that law enforcement officers are not infallible. And neither are judges for that matter! As a guardian of justice, I aim to be a lover of the truth. Seeking justice divorced from the truth is not justice.
Professional Tip: Develop Perseverance and Don’t Get Jaded
Defense attorneys need to develop perseverance. We should be zealous but not compromise our ethics in our advocacy. We want to advocate for justice with compassion and mercy. We remind ourselves not to be jaded by the injustice in this world. While we pursue justice, we realize that there will not be a perfect system of justice in this world as the system is made up of fallible individuals. There is only one perfect Judge that we must all answer to who gets everything right and who already knows the complete truth and nothing but the truth.
The Punishment Should Fit the Crime
But the reality is, many of my clients are indeed guilty of the crimes they are accused of. So why do I enjoy defending them? My answer is this: even the guilty need an advocate. I enjoy defending the accused to make sure they are given a fair trial and treated with respect and dignity by the court. You see, all people are created in God’s image and whether black or white, rich or poor, they deserve their day in court. We are not like other countries where the accused have no rights.
Many times I help my clients take ownership of their actions. I view myself as a community peacemaker. I counsel them on how to recognize their wrongful behavior, apologize to the court and any victims, and contribute back to the community. I hope to be an agent of healing in their lives and help them move on from their poor decisions.
Even when my clients are guilty of a crime, the punishment must fit the crime. The law can be overly harsh. In Virginia, it is possible to face jail time for driving at speeds of 20 miles or more above the speed limit. Virginia law calls that reckless driving by speed and a judge has discretion to give up to 1 year in jail for the offense!
As such, I often wear the hat of advocating for mercy. For most of my clients, I don’t find any dismissible errors and the prosecution meets its burden of proof. Yet there is plenty of room to argue for mercy in the sentencing. Often times I’ll tell my clients that I don’t have magic dust to make their charges disappear. I can however, do my best to be a professional beggar. They are paying me to be their advocate, to stand up for them even better than they could stand up for themselves.
Mercy Seasons Justice
One time in begging for mercy, I wanted the court to slow down and give due consideration to my client. The court was rushing through its docket but I was resolved to take adequate time to explain to the judge the mitigating circumstances and the positive actions of my client in taking responsibility. Amidst some snickering from the other attorneys in the courtroom, I read a portion written by William Shakespeare from his work The Merchant of Venus. Perhaps Shakespeare’s words had an effect because the judge found my client guilty of a misdemeanor instead of a felony. The poem goes like this:
The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
‘Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthronèd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.
If you desire to go to law school to advance a legal career, I hope that you would join the ranks of attorneys who have a life mission of pursuing justice and mercy, rather than seeking fame and fortune as your life goal. The road we walk requires patience, perseverance, and knowing that you cannot make everybody happy. Press on, for justice and mercy!
About the Author: Attorney Peter John Louie is a Criminal Defense Attorney in Virginia Beach. The mission of his law firm is to love justice and to pursue mercy by representing those charged with crimes. His firm specializes in traffic defense matters and has represented thousands of individuals charged with reckless driving and DUI.
[i] Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997): 173-216.
[ii] Benjamin Franklin, “Letter from Benjamin Franklin to Benjamin Vaughn (Mar. 14, 1785),” The Works of Benjamin Franklin 11, ed. John Bigelow (1904), quoted in Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997): 173-216.