THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Sunday, July 24, 1994 TAG: 9407220245
SECTION: CHESAPEAKE CLIPPER PAGE: 02 EDITION: FINAL
SOURCE: Tony Stein
LENGTH: Medium: 90 lines
Randy Smith is a criminal defense attorney who practices in Chesapeake and every so often someone says to him: ``How can you do it? How can you represent `THOSE PEOPLE?' ''
OK, Smith says to them, suppose they or someone they love were charged with a crime? Wouldn't they want a lawyer to fight for them? Ideally, he says, defense attorneys try to ensure that the innocent don't get punished. But even the not-so-innocent have a right to a fair trial, a trial in which the state has to prove they're guilty.
``It's not a perfect system,'' Smith admits, ``but where in the world is there a system you would rather have?''
Maybe never before has national attention been so totally focused on the justice system as it has been in the O.J. Simpson case. That's why I asked Smith to explain some of the legal, moral and ethical positions a defense lawyer must take.
For instance, does a defense lawyer really know whether his client is innocent or guilty?
``I want complete honesty from my client,'' Smith says. ``I want the facts as they really happened. That's not a moral issue but a practical one. I want no surprises in court.''
A lawyer is bound to keep his clients' admissions confidential, but Smith says there's an important distinction.
``If a client says he did something criminal, that's confidential. But if he says he's going to do something criminal, the lawyer must take action.''
What Smith calls a ``classic dilemma'' for a defense lawyer can come when a client switches stories and plans to falsely claim pained innocence. A lawyer cannot allow a client to commit perjury, Smith says. It's one of those times when a lawyer might have to withdraw from a case.
But when it comes to defending a notorious case or client, Smith points out that a lawyer's code of ethics forbids turning down a case because of public opinion or the nature of the client or the crime. At the same time, the ethics code says that the lawyer cannot take the case if he or she cannot zealously represent the client.
Absolute guilt or innocence may not be the only question, Smith notes. Is the client guilty of a lesser crime or are there extenuating circumstances?
Maybe nothing makes critics of the criminal justice system gnash their teeth and jump around more than the instances where the case is dismissed because of a ``technicality.''
But, says Smith, what the critics angrily label a ``technicality'' may well be a clear violation of a constitutional right.
``Judges don't throw out cases because there's a wrong date or a missing comma,'' Smith says. ``A common situation is one where a charge of possession of drugs is dismissed because the police didn't have sufficient reason to search a person's car or pockets.
``That makes people mad. They say `He HAD the drugs. He's guilty. How can they let him go?' But, as frustrating as it is, we can't have a society where the police can search anyone anytime without probable cause. How would you like it if you were the one they searched?''
And suppose there's a specific piece of evidence that proves beyond doubt that a defendant is guilty of a vicious crime. Watching a lawyer at work, most of us wonder how in the world the lawyer can fight to keep the evidence from being introduced.
Yet the lawyer must fight, Smith points out. It's part of what the code of ethics calls ``zealously'' representing the client. If the lawyer suspects there's a valid legal reason to exclude the evidence, he or she must try.
Smith points a question and a comment at people who say lawyers sometimes try to bury the truth. ``If you needed medical care,'' he asks, ``wouldn't you want a doctor who considered every possibility?''
And he notes that the person accused of a crime may suddenly have a very different view of what is a so-called ``technicality.''
Smith smiles as he observes that a lot of the conservatives who snipe at legalisms and say criminals have too many rights are supporters of Oliver North. That's the same Oliver North whose convictions were overturned on what would certainly be labeled a ``technicality.''
Yes, Smith says, sometimes a person who is actually guilty of a crime is deemed innocent because the state can't prove it beyond a ``reasonable doubt'' or because of a twist of the law.
``When that happens to one of my clients, I try to talk sense to him,'' Smith says. ``I tell him that he got a break and that, if he's smart, he'll use that break to work on rehabilitation.''
It's the system - zealous defense lawyer versus zealous police and prosecutor. Like the time two of my nephews were arguing. One was a cop who had arrested a burglary suspect. The other nephew was the defense lawyer who got the suspect off.
``I hope,'' said the cop nephew, ``that the first thing the guy does tonight is trash your office.''
I don't think he was kidding. by CNB