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It Was Self Defense


Anyone in the criminal law business knows that finding preposterous claims from defense counsel is not exactly a difficult enterprise.  Still, every now and again, I like to point out one example or another of defense whoppers just as an antidote to the typically smug and self-righteous claim that defense work is really about Being Champions of the Constitution.

This is not to say that all defense work is baloney.  Some of it actually is about defending the Constitution.  But let's face it, most of it is about trying to bamboozle the jury into buying a concocted story about how the defendant is Mr. Nicey, or, if not that exactly, at least a "victim" of something or other, and thus not really responsible for his behavior.

Thus tonight's story of the fellow in Buffalo, NY  --  a successful and seemingly well-built, six-foot man  --  who is claiming self-defense in the slaying of his diminuitive wife.  For years, she had physically and psychologically abused him, so sayeth the defendant.  Thus he defended himself by offing her. 

Only one thing.  The "self-defense" consisted of stabbing her 40 times  --  that's FORTY times  --  then sawing her head off.  Read all about it.


How this is not a First Degree murder prosecution is beyond me. There was premeditation-he was video taped buying only the "sharpest knives" hours before and then lured her to her death with a fabricated story.

Don't worry, Oprah and her ilk will take up the banner for this aggrieved class of new "victims"-men who are psychologically abused by their now separated wives.

Defense work must be tough-tough to keep a straight face. Seemingly no present day defense is so ludicrous, so unreasonable, to be recognized as beyond the pale. A sad state of affairs in my estimation.

This is truly stunning. It's the kind of argument that shows where lawyer jokes come from.

mjs and notablogger,

Just so. This is why I remain very curious about what, exactly, makes defense lawyers tick. It's true that, from time to time, a factually innocent person gets indicted, and in such cases defense lawyers are, and correctly view themselves as being, an indispensable counterweight to the state (see, e.g., the Duke lacrosse case).

But for the most part, defense work is about manufacturing a smoke-and-mirrors story for a guilty (and not infrequently dangerous) man. After years in the system, I remain mystified as to why a person would spend his or her career peddling fiction for the benefit of a defendant he or she knows, or upon reasonable inquiry would know, is guilty as hell, not to mention likely to do it again.

I doubt it's just for money; indeed, I would bet a lot that money is almost never the main reason motivating defense lawyers. So if either of you knows what IS the main reason, I'm all ears.


As a non-attorney, I have the following observations from 35 years in state and federal court.

Defense attorneys are motivated by some/all of the following characteristics:

Socialist/Liberal bent;

Belief that laws are passed as a means for the majority to oppress the minority;

Police are agents of oppression rather than agents of social control;

Adversarial system is a game--the name of the game is to experience the psychic high that comes with a besting of the big, bad government...and let the chips fall were they may; and

Fervent belief that there is always one outlier juror who can foil the outdated unanimity requirement.

Bill: There are a lot of criminal defense attorneys like my spouse who earn an honest living by trying to obtain reasonable plea deals for their clients, knowing full well that they are indeed guilty. Also, one of the main reasons my spouse left the public defender's office for private practice was in order to be able to turn down cases that were morally distasteful and/or heinous. I don't think this is a totally unusual situation.

On the other hand, there are plenty of criminal defense attorneys like the one in this case who are somehow able to make arguments so contrary to any reasonable definition of reality as to be completely absurd. I have no explanation for this, other than there are a lot of dishonest people in the world, and a lot of them decide to be lawyers.

mjs and notablogger --

Thanks. This is exactly the kind of insight I'm looking for. Many of my former colleagues in the USAO became defense lawyers (although with a heavy tilt toward white collar work). Most of them are good people, so it's not as if I think ill of defense lawyers as a group. Still, even though I might have been able to make a lot of money doing it, it was never my cup of tea. I do think it requires a disconnect from the kind of straightforward accountability that was such a central part of my rearing.

In my house, if you did wrong, you told the truth about it and took your medicine. I was a fairly compliant kid, so I didn't misbehave that much, but of course that scarcely means I was pure, since, like any child, I certainly wasn't. Still, in my parents' eyes, the only thing I would do that really disappointend them in me was when I did something wrong AND THEN LIED ABOUT IT.

It's the deceptiveness of so much of defense work -- even more than the clients -- that makes it impossible for me to go in that direction.

I don't know much about this particular case - the facts look pretty damning for the defendant - but as a defense attorney, perhaps I can shed a little light on how such a defense might come about.

First of all, the prosecutor may not have offered any kind of a plea bargain, meaning that the only options were 1) plead guilty as charged with no reduction in the recommended sentence; or 2) go to trial. With no offer of any kind on the table, the defendant has nothing to lose by forcing the government to prove its case. And while this particular client may not deserve a plea deal, forcing the state to go to trial on this case may make them more likely to make a deal in the future for someone who truly does deserve it.

Second, it is the DEFENDANT who makes the decision whether or not to plead guilty or go to trial, not the attorney. I have had clients insist on going to trial against my best advice. I may think it is stupid, that they are going to lose, or that they are scumbags for not taking responsibility, but it's not my decision - it is their decision.

Third, once the client has made the decision that they are going to trial, then the attorney has the obligation to put on the best defense available - and sometimes the best defense is pretty bad. In a case like this, the defendant admitted to everything, so the only possible argument left is self-defense. In my jurisdiction at least, once the defendant raises self-defense, the prosecution has the burden of proving that a crime WAS NOT committed in self-defense; it is not an affirmative defense, it is an actual element of the crime that must be proven beyond a reasonable doubt. So raising a self-defense claim is nothing more than requiring the state to meet their burden of proof.

Fourth, don't be overly ready to form opinions based on news reports such as these. The press generally tells only half of the story, and they get what they tell only about half-right.

Before I became a defense attorney I spent two years interning for the prosecutor's offense and I have a great deal of respect for their work. But I was always amazed how much grumbling went on when a defendant "asked" the state to meet its burden of proof. After all, that is the state's job. It's like a garbage man grumbling about having to pick up the garbage. When I worked there I considered it an honor and a RESPONSIBILITY to be ready to carry that burden whenever asked. And in a case like the one being discussed here, it most likely will not be too difficult.

And as to why a person would choose to become a defense attorney, all I can say is that it is very rewarding, though it is difficult to explain. I just represented a homeless man who got assaulted by a police officer. The officer mashed his face into the ground, smashed it all up, charged the homeless guy with "Obstructing" (the crime of choice for over-eager police officers who don't get the obeisance they believe they deserve) and the homeless guy sat in jail for 11 days before a judge finally released him pending trial. I had an eye-witness who was horrified at what the cop did. The prosecutor mocked me for taking it trial - after all, who would believe this homeless guy over the cop? The prosecutor was also quite lazy and never bothered to speak to the other witnesses in the case. And the prosecutor was convinced of the cop's honesty - a mistake that far too many prosecutor's make.

To make a long story short, my client was vindicated, the cop was embarrassed and the prosecutor was humbled a little bit. I, too, was humbled by seeing the legal process in action and realizing that by doing my job diligently and forcing the state to meet its burden of proof, I could help prevent further injustice. (Note that I don't say that I could achieve justice - that would involve seeing the cop go to jail for perjuring himself and malicious prosecution, a result that even I recognize is not realistic in most situations).

I have learned not to generalize negatively about police officers or prosecutors, or lament the "injustice" of "the system", but just to do my job as best I can - and to never be afraid to force the state to meet its burden of proof.

I hope this doesn't come across as defensive - but hey! if a defense attorney can't be a little bit defensive, who can? I truly enjoy these conversations.

Thank you very much for your thoughtful and helpful remarks. I wish the blog had more comments from defense counsel like you and notablogger's husband.

At some point I might undertake a longer response of the kind your message deserves, but for now just let me say that the example you give of someone set upon by the police, apparently for no good reason other than that the cop thought he would get away with it, is atypical of defense work, at least in my experience.

The crucial difference is the most obvious: the guilty vs. the innocent. You had an innocent client who actually WAS a victim. But, in my experience, by far most of the time the defendant is guilty. Indeed, much of the time he's guilty not only of what he's charged with but with a raft of other unsavory behavior for which the government does not have sufficient proof and which therefore goes unpunished (and largely, for official purposes, not even noticed).

The central conundrum of defense work is that, since the client is almost always guilty, the only way to get him off is to muddy, in one way or another, the presentation of the truth. This ranges from, at the extreme, witness elimination to, at the other and more common extreme, delay, diversion and showboating and/or just plain annoying tactics, all designed to distract the jury (and sometimes the prosecutor) from the central, evidence-based issues in the case -- issues which, if presented straightforwardly and without such tactics, would result in a guilty verdict.

If I am correct about this, the chief inventory of defense work MOST OF THE TIME (not all the time), is deceit, either in its hard core or its numerous soft core forms. As I was saying to mjs and notablogger, I just can't do it, because it goes against everything I was taught when I was growing up -- and which, as an adult, I have adopted as the moral anchor of my career.

Thank you again for your insightful comment.

The case I described _is_ somewhat atypical of defense work - but so is the case that is the subject of this blog post. There are outliers on both ends, and a broad spectrum in between. To respond to a couple of specific points, you write:

"The crucial difference is the most obvious: the guilty vs. the innocent. You had an innocent client who actually WAS a victim. But, in my experience, by far most of the time the defendant is guilty."

But that just begs the question: how do you know which defendants are guilty and which are innocent? There would be no need for defense attorneys if the prosecutors only charged the guilty. In the example I raised, the prosecutor was convinced my client was guilty, right up until the day of trial. There are many cases where I am not sure myself if my client is guilty or not. For example, I get a lot of domestic violence cases where a spouse is charged with pushing or hitting another spouse, but there is no actual physical evidence one way or the other, and all you have is two people who tell different stories about what happened. I don't know which one is telling the truth - and neither does the prosecutor. If the prosecutor agrees to stop charging these cases on such flimsy evidence, I'll agree to stop defending them. But what are the chances that is going to happen? Either way, the defense attorney isn't engaged in any type of "deceit" by arguing his client's case.

There are other cases where it is fairly easy to determine that the client is guilty, but the case gets thrown out for some other reason - usually because the police violated a constitutional right of the client. The most obvious example is cases involving the possession of drugs. Chances are that the possession of the drugs is beyond dispute - but if the drugs were found during an illegal search then the case is dismissed. Again, there is no "deceit" going on - just the application of the law to a set of facts. I have no qualms about arguing these cases at all.

Sometimes the client is guilty of something, but they have been grossly over-charged. It is not uncommon for me to have to call a prosecutor and say, "Hey, my client will plead guilty to Crime A because he acknowledges he did it, but Crimes B and C are over the top." If the prosecutor turns me down, then I'm going fight like hell to keep my client from getting rolled.

I will give another example that I think is very typical of defense work. I handle a lot of DUI cases. It so happens that here in Washington, the head of the State Toxicology laboratory was signing affidavits saying that she tested solutions used in our breath test machines when in fact she had never tested those solutions. In other words, she was perjuring herself. At about the same time, the State Patrol officer who was in charge of running the quality-control testing program for the breath test machines was suspended because he bought a fake diploma from a diploma mill so that he would qualify for a raise.

So here is the question: If I have a client who is (probably) guilty of DUI, but I get up and tell the jury that we'll never know for sure if they are guilty or not because the State decided to put two confirmed liars in charge of running the breath test program, am I "muddying the waters" or am I legitimately calling into question the procedures that we use to gather evidence? I certainly don't believe I am deceiving anyone. If the state wants convictions, it shouldn't hire liars. Hundreds, if not thousands, of cases got resolved because of this wholesale fraud that was going on without anyone knowing about it until the defense bar brought it to light.

And to me it is totally bizarre to suggest that a government that engaged in such wholesale fraud has a right to wag its finger at a defendant and say, "You need to take responsibility for what you did!" The client has already been arrested, taken to jail, usually kept overnight, had their drivers license suspended, incurred thousands of dollars in legal fees, sometimes already lost their jobs, and been humiliated. And now they are supposed to "own up" and plead guilty to a charge that will haunt them for the rest of their lives? And they are supposed to do it knowing full well that the state's evidence is a product of fraud and wouldn't stand up in court? Really?

(And as a side note, did the State Patrolman or the Tox Lab Supervisor get prosecuted for their wrongdoing? Of course not... but if they did, I'd represent either of them in a heartbeat.)

Of course I could go on and on, but I don't want to rant. I guess I am ranting, but it is intended as a friendly rant. My main point is that there is always _something_ wrong with the state's case. The "system" is not a tool of injustice as some defense attorneys like to claim, but it is an extraordinarily blunt instrument, fraught with human error and capable of causing harm even as it seeks to prevent it. And in the vast majority of cases there is no malice or antagonism between myself and the prosecutor - we look to see if there is a deal possible, and if not, I put them to the burden of proof, professionally and with respect.

I'll sum up like this: I have never argued something to a jury that I felt was deceitful. I have challenged the evidence, I have proposed alternate possible explanations, I have raised legal defenses, I have argued that the evidence produced was insufficient to convict, I have asked juries to question the professionalism of the police when I felt is was questionable, and I have forced the state to carry the burden of proof. And the only time I ever lost any sleep over it was when I felt like I could have done more.

Yours is a great blog. I've got the RSS feed in my email reader and I'll be checking in again!

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