As an attorney, I get asked now and then by perspective clients, "What difference will it make if I hire you? Can you guarantee you will fix this?"
The short answer to that is: "It is unethical to guarantee a result in a criminal case." This is generally true in all U.S. jurisdictions, and is also true in many foreign ones. In Missouri, the rules of professional conduct for attorneys are spelled out laboriously in Rule 4 of the Missouri Supreme Court Rules. The rules aren't as direct as in some other jurisdictions, but a close reading yields the same result.
Some clients even ask sometimes if they can pay more to get the best result, like a dismissal or nolle prosequi. This is prohibited in criminal law, and it isn't hard to see why. If more money could buy more justice, the legitimacy of the rule of law itself would be undermined in a fundamental way that would ensure the perversion of justice. There is a sense in which more money can sometimes buy a more talented attorney, but that is not the same type of imbalance. That type is a systemic issue related to wealth and poverty, and is not easily mitigated without creating further evils that outweigh the attempt to avoid the outcome. Do rich people have more money to pay for the best attorneys? Sure they do. People with money usually have nicer homes, better cars, and often the best attorneys. But this amount of disparity is arguably part of the human condition itself, and is not a direct threat to the system of justice. Allowing people with money to 'pay' for better results however, if it were somehow possible, would turn the rich into a protected class, and the poor into the target of rules only applicable to them. Thus, such conduct by attorneys is not allowed under our system of justice.
So what then can an attorney promise you when you hire them? They can promise to advocate zealously, and to bring all of their knowledge and experience to bear on the issue at hand. The very concept of professionalism, is the idea that someone, such as an attorney, can gain insight and understanding of frameworks that others do not have, and then leverage those understandings as an advocate and agent of the person lacking that expertise. When you are going into a situation ruled by complex rules and sometimes even more complex political or interpersonal dynamics, it is vital that you have someone to help you navigate through the maze of things unknown to you. An attorney can bring a wealth of understanding related to the details of a case, and to the intentions of the individuals involved in the process of pressing particular charges against a person. These understandings can be leveraged toward convincing those responsible for pushing the case forward to rethink their positions, and if they will not, these same understandings can be utilized to push those same parties to prove up their assertions of criminality at a trial. The immense power of even local governmental systems, and particularly larger ones, is cause for sober reflection if you find yourself charged with a crime. If you are accused of a crime, it is wise to notice the power behind those pointing the finger at you, and do all that you can to get someone in your corner that knows what is going on, and how your accusers will seek to "process" you through their systems. That's the job of a criminal defense attorney.
There is another important benefit to hiring an attorney if you have been accused of a crime. This is true even if the attorney isn't a very good one. That benefit is having someone to act as a buffer between you and the prosecution. Imagine a careless attorney, saying something in open court that suggests his client is residing with the alleged victim of a domestic assault, after the Judge had ordered that the person was to have no contact with the victim. In such an instance, what would this result in? The answer is complex, but ultimately, though damaging, this would probably not result in punishment for a violation of the Order. Why? Because the attorney making an error like this is simply careless on his or her part, and may or may not even be accurate. The main factor here is that though the attorney is the agent of the accused, he or she is not the person themselves, and cannot admit anything for the client without their approval. This fact creates a buffer in the communication transfer between the authority and the defendant. Do you want a careless attorney like this? Probably not, but the point is that even where errors are made, they are not definitively your errors.
If on the other hand, a person representing themselves said this, it is by all accounts an admission to a violation of the Judge's Order. In that case, there is no argument to say the defendant as the speaker is mistaken, or wrong, or ill informed, because the speaker is the same person under the directive of the Order. The consequences of errors in communication or in choice of words can be definite and immediate in certain contexts where a person addresses the prosecution or court themselves. Speaking directly to authority is a tricky and dangerous proposition in many cases, and is one reason you often see a defendant fail to take the stand in their own defense in a criminal trial. It is a much longer road to criminal liability when you have a buffer between yourself and the system that has power over you. So the mere existence of an attorney between you and the system can yield great benefit, regardless of the talent or knowledge any particular attorney might possess.
So what does a typical attorney representation look like, and how does an attorney help to improve the situation for the client? While very little is typical in criminal law, there are some things that you can count on:
1) If there is a charge against you, there will be specific elements to the charge, and each one of these are required to be proven to convict. An attorney may attack the evidence, showing those elements as lacking and thus undermining the charge, either in private negotiations or in open court. This is a direct legal attack of the case itself, and it takes sophisticated knowledge of legal principles to make many of these points stick. Where the elements are not present, the case is dead unless it can be reconfigured as something else, such as a lower level crime which requires less or different elements.
2) There will have been circumstances that led to the formation of a belief that a crime was committed in the first place, and that it was you as the accused who committed it. An attorney may take issue with how those determinations were made, and will certainly look closely to see if there are Constitutional problems with the way the authorities obtained the information that they now seek to use to prove the elements of the crime they are asserting has occurred. Many of the foundational issues creating the legitimacy of an officer or other authority's right to inquire into your particular situation in the first instance are assumed by the prosecution as legitimate at the outset. It is the job of the criminal defense attorney to notice the sloppy logic often applied by those in power, with their obvious incentive to apply sloppy logic to your case, and to press upon these flaws until they are addressed. Most people have heard that there are many ways in which a person accused of a crime might have a right to a reduction in the level of charge or even dismissal of the case. What most people fail to understand, is just how often people with good arguments throw them away and plead guilty without even raising the issue. This happens because of the complexity of the system, and because of the stacked-deck present in situations where one side has all the knowledge and all the power. A good defense attorney can shift this dynamic.
3) Every person has a story, and sometimes the life situation of a criminal defendant is directly tied to the charges. Consider a situation where an armed services veteran is suffering from PTSD, and gets into an altercation resulting in a charge. Or consider a situation where a person is addicted to a drug like heroin, and is virtually unable to walk away from their need for the drug. Is criminalizing the conduct of using going to stop the person from doing so? All evidence suggests the answer is a resounding "NO". In situations like these, it is important to first look at the actual defenses to the case, but if the police and other authorities have done their job well, and the charges look like they will stick, there may be ways to help the system to approach the problem from a more holistic perspective. Sometimes, this is institutionally available, such as in the cases of Veteran's Courts, Drug Courts, and DWI Courts. Other times, there is no formal way to avoid the social trappings of ill informed criminal laws. In either case, the attorney, as the advocate and counselor before the court, can often push to have punishments delayed, avoided, or augmented to bring about lasting improvement in the life of the individual facing charges. These types of equitable approaches to representation often step in where legal arguments leave off, or are outright unavailable. It can be the difference between tragedy and forward progress in a client's life.
A good attorney knows that he operates in a system, and understands it rules. An even better one understands certain laws are wrong in the moral sense, and sees the human consequences of bad laws as worth fighting against. Yet still, most of the value in fighting back against bad laws comes from an understanding of the legitimate ones underpinning the structure of law in the first place. To fight against any charges, morally legitimate or not, you need to understand how and why those charges are "legally" legitimate. That is to say that the outcome of a criminal case is often dictated by simply holding the system to it's own terms. A good real-life example of this would be when a client came to my office with felony charges that could not legally be classified in that manner. They were misdemeanor charges, with no felony charging option being present without specific additional facts related to prior jail sentences, which the client did not have. Didn't the officer know this couldn't be a felony without the necessary prior jail history? Didn't the prosecutor who reviewed the officer's work and brought the charges know this?
In short, no, they didn't. This was just one of many laws, and the wording is tricky. You have to sit and read it with an eye focused on the minute details to understand why the case could not have been a felony. Prosecutors do their best for the most part, and assume that they get it right, until someone proves to them otherwise. The same goes for police, though they have the additional pressure of trying to figure out the appropriate charges on the fly, often with little time to think between attending to the next situation in need of their attention. It's understandable that errors like this occur. They happen all the time. To catch them, you have to look for them, and you have to know what to look for. Prosecutors and police usually do their best, but relying on them for protection of your rights is a BIG mistake. They don't work for you, and have little incentive to spend more than a couple of minutes considering the parameters of your case at the outset. And sometimes, the less honorable among them will even simply ignore such problems when they see them, if they think the defendant can be prosecuted without anyone being the wiser. This is unethical to be sure, and is not most prosecutors, but it does happen. As with all things in life, a position is only as honorable as the person who occupies it, and we all know there are plenty of people who believe that the ends justify the means in the general sense.
Believe it or not, it still takes substantial effort to undo such a mistake, but in the end, that is what happened in this particular case. But what if the man hadn't hired an attorney and had simply plead guilty? What if he hired an attorney who didn't know much about the details in that area of law?
This is a good example of how an attorney makes a difference in a case, but there are no guarantees. Sometimes upon reviewing a file there is nothing to argue, and the case seems impossible. Worse still, some cases like this have no real equity to be brought forward, and everyone is convinced that the accused needs to be hit as hard as possible for their alleged conduct. Even in these situations however, the efforts of an attorney to poke as many holes in the case as possible, and to mitigate and humanize the position of the accused, usually brings a marked improvement from the situation that existed before the hiring of counsel. An attorney almost always makes a difference in the outcome. Measuring it? That isn't easy.
At S & S Legal, LLC, we pride ourselves on working hard to improve the situation from the place we found it, and we usually do, sometimes dramatically. If you have been accused of a crime, contact us today to see how we can help.
Joshua R Schrimpf
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