The Criminal Defense Attorney: “The Devil’s Advocate?”
THE CASE
On a chilly, clear, morning a boy, no older than 16 years old was walking up a hill in Bronx County, New York. It was about 7:00 am and he was walking home from an all night party that he had attended with some friends. Why a 16 year old boy is walking home at 7:00 am from an all night party is indeed a question we will address in a different paper.
Unbeknownst to the boy, 3 adult males, like hungry wolves in a frozen forest, had been lurking around the same neighborhood for the past 2 hours. They were angry and seeking blood. Suddenly and unfortunately, the 3 adults, with eyebrows down and ears pinned back, saw the boy and descended upon him as he was walking across a street. As the boy backed against a parked car in a defensive position, one of the adults asked him about a shooting that occurred at the party the night before. The boy leaned his back against a car, put his hands up and said “I had nothing to do with that.” Wrong answer!
“I had nothing to do with that.” Wrong answer!
One of the adults immediately punched the boy in the face. The boy stumbled and tried to sprint up a nearby hill. As he ran, he was holding his pants by the waist area with one hand and swinging the other hand in full ear to hip motion. However, his beltless pants prevented his knees from rising and made his attempted sprint nothing more than a slow jog.
Two of the adults gave chase: the puncher and another. The third adult, fearing the obvious, ran in the opposite direction down the hill. As the boy lumbered up the hill, the non-punching adult pulled a gun from his waist and shot at the boy several times. He hit his target. The boy grabbed his leg and his head leaned backward as he screamed in pain. He fell to the ground. The two adults slowed their chase and approached the boy as he dragged himself up the sidewalk towards a building. As he slowly crawled, the puncher kicked him in the back. His chest slammed against the ground. He was out of breath: Too many cigarettes, Fanta grape sodas and purple haze marijuana.
He was out of breath: Too many cigarettes, Fanta grape sodas and purple haze marijuana.
The shooter stood above the boy: “Turn your ass over!” The boy turned over and raised his hand his left hand, palms wide open showing the universal bodily signal of a stop sign: “Don’t shoot. I didn’t do nothin’, I didn’t do nothin’!” The shooter paused as if to listen to the young boy’s now earnest prayer. In the next second, the boy was shot several more times, in his chest. His body resembled a car crossing a speed bump at a high rate of speed after each shot. His extended arm slowly dropped to the ground. There was no more movement. The shooter and his friend slowly turned and continued to walk up the hill, around the corner and out of sight.
THE OUTCOME
The prosecutor’s case consisted of: (1) several angles from street video cameras capturing the approach by the adults, the punch, the chase and the shooting; (2) eyewitness testimony from the first adult who ran the opposite direction identifying himself, the victim and the other two adults on the video; and (3) cooperating eyewitness testimony from the “puncher” who identified himself on the video punching and chasing the boy and identified his lifelong friend as the shooter on the video.
My client, the “alleged” shooter, was found not guilty after trial of all charges. My defense: it wasn’t him.
WINNING IN THE CONTEXT OF THE CASE
Prior to starting any trial, I generally (and often randomly) tell someone the facts of my case, from a prosecutor’s perspective in order to obtain their objective, unbiased opinion. This trial was no different. While having a conversation with one of my colleagues who practices civil work (non-litigation), I informed her of the nature and alleged facts of the trial.
I often do this because litigators live with their cases and at some point begin drinking the “Kool-Aid”. Random people, however, when given a set of facts, will invariably ask questions or bring up issues you have not thought of about your case. These random people are like jurors.
She immediately commented: “Go get ’em devil’s advocate.” I didn’t think about it at the time. I just shrugged and continued my preparation as normal. Of course, when I am on trial, my objective is clear: win in the context of the case.
“Winning in the context of the case” may mean an acquittal on the higher counts or an outright acquittal. What my client actually did is of no moment when I am on trial, unless it plays a role in “winning in the context of the case.” Of course when the government is seeking the death penalty, “winning in the context of the case” may be focusing on securing a life sentence, rather than any futile pursuit of an outright acquittal.
“Winning in the context of the case” may mean an acquittal on the higher counts or an outright acquittal.
AM I MAKING THE STREETS UNSAFE?
As of today, I (like many of my colleagues) have had several murder and attempted murder trials and I have rarely heard a jury utter the word “guilty” next to the word “murder” after a trial. This has led my mentor to remark “Boy, you are making the streets of New York unsafe.” Of course, he says this after he consistently provides me strategies to ensure I “win in the context of the case.”
One might ask: “Does a defense attorney get the same satisfaction when a person he believes to be guilty is found ‘not guilty’ as when someone he believes to be ‘not guilty’ is found ‘not guilty?’” The simple answer is, “Yes.” Why? Because when criminal defense attorneys are on trial, there is an uncompromising desire to win in the context of the case, notwithstanding the perceived guilt or innocence of the client.
Of course a lot has been done prior to the trial to achieve an appropriate disposition. But if we are on trial, then all roads have been pursued and the only road left is to try and win in the context of the case.
After my last murder trial, several friends, colleagues, mentors and acquaintances congratulated me. However, others have asked me how I do what I do, knowing (they assume), some (and according to a few of them “all”) of my clients are guilty of extremely heinous crimes?
Some prosecutors have actually told me they do not understand how defense attorneys can represent people accused of heinous criminal activity. While I understand that some of this commentary is simply to say that they themselves would not represent persons charged with murder, others have hypocritically argued a complete lack of understanding of the necessity of a criminal defense attorney. As the great O.T. Wells once said: the criminal defense attorney is the most important attorney in the United States because she is the only attorney guaranteed by the United States Constitution, which makes her the only true “constitutional lawyer.”
As the great O.T. Wells once said: the criminal defense attorney is the most important attorney in the United States because she is the only attorney guaranteed by the United States Constitution, which makes her the only true “constitutional lawyer.”
WHAT IS JUSTICE FOR ACCUSED CRIMINALS?
Others, with undeniable intellect, question a system that allows my type of lawyer to exist at all. They insist the 6th Amendment needs to be, in fact, Amended. Still others, persons I actually admire and respect, have steadfastly demanded I “cease and desist” practicing criminal law altogether. Interestingly, several attorneys have asked me whether “justice” is done if the defendant had actually committed murder or another criminal act and was acquitted.
This “justice” word is very slippery. Since the first day of law school, I always thought the “reasonable” or “reasonable man (person)” used in the law was very dubious. But when you combine “justice” with “reasonable,” it’s like understanding how those ripples in the Universe can be seen a billion light years away with a camera.
This “justice” word is very slippery.
Are we criminal defense attorneys actually the “devil’s advocate” they ask?
The American Bar Association (ABA) rules instruct that the criminal defense attorney is an indispensible part of our system and that “counsel for the accused is an essential component of the administration of criminal justice.” Section 4–1.2(a). The concept of “justice” is intriguing. If a criminal defense attorney, as an essential component of the administration of justice secures an acquittal, does that mean justice has not been done or justice has been served? Does it matter whether the defendant actually committed the crime? How is justice defined prior to the beginning of the trial and who makes that determination?
WHAT ABOUT THE VICTIM & THEIR FAMILY?
Indeed to some people, a “not guilty” verdict even when the defendant was actually guilty is “justice” because it begins to even the balance of past guilty verdicts of actually innocent people. That, however, is difficult to explain to the family of the slain child whose killer just walked out of the courtroom to his loving family waiting in the hallway. There is, however, a certain irony to this when you think about it: On one side of a packed courtroom, the family of the deceased is waiting for a verdict of guilty; on the other side of the courtroom, the alleged killer’s family is waiting for a verdict of “not guilty”. Both families are simultaneously praying for justice.
On one side of a packed courtroom, the family of the deceased is waiting for a verdict of guilty; on the other side of the courtroom, the alleged killer’s family is waiting for a verdict of “not guilty”. Both families are simultaneously praying for justice.
Society is always impacted after a verdict is rendered because: if the defendant is actually a killer and found “not guilty,” then a killer will be “at large” in society; if the defendant is not a killer and found “not guilty,” then he is free to leave (of course with a sullied reputation); and, if the defendant is not a killer and found guilty (yes this happens), then that is the worst of all worlds.
Ms. Roberta Flowers, in an article published in the Ohio State Journal of Criminal Law, states that “in some situations, the duty of the criminal defense attorney may be protecting the system from unjust results.” The Role of the Defense Attorney…Not Just an Advocate.” Ohio State Journal of Criminal Law, vol 7, 647, 650 (2010). If a criminal defense attorney thinks he knows his client kidnapped and brutally murdered three children and the prosecution is not proving its case so that it appears that the jury may acquit, does the defense attorney have a responsibility to prevent “unjust results?” If yes, how exactly is he supposed to do that while simultaneously advocating with “courage and devotion?” More importantly, when is that determination made during a trial?
Greta Van Susteren stated that “…Criminal defense attorneys must suspend their personal morality and make a firm commitment to the system of justice…The criminal defense attorney with a conscience in the courtroom is not an advocate…” (Responsibility of a Criminal Defense Lawyer, Loyola of Los Angeles Law Review, page Vol 30, 125 128, 1996 Greta Van Susteren). She follows this up by stating a defense attorney should “want a prosecutor to win when the evidence rises to a level of proof beyond a reasonable doubt.” (Id.) If he has that feeling, however, he is providing a disservice to his client and our system of justice because he cannot zealously represent his client, as the law requires, while simultaneously wanting a prosecutor to win.
As a matter of fact, if and when a criminal defense attorney believes the prosecutor has proven her case, most criminal defense attorneys will simply hope at least one juror disagrees with his individual assessment and hangs the jury so we can live to fight another day!
DOES EVERYONE “DESERVE” A GOOD ATTORNEY?
Justice not only requires that a criminal defense attorney zealously advocate for his client, but he must do this even when he thinks he knows his client is guilty of a heinous crime.
Curiously, some people insist that justice is not achieved when a person accused of a serious crime receives good, free representation. The logic of this position is beyond my intellectual abilities but quietly, that appears to be the position of many persons: “You can have an attorney, just not a good one or one that is going to try and win your case.” It’s like Chris Rock said in Lethal Weapon after he chased, caught and handcuffed a suspect: “…you have the right to an attorney. If you can not afford one, one will be given to you by the Court. If you hire Johnny Cochran, I’ll kill ya…” It seems we all cloak ourselves under those American ideals of “innocent until proven guilty” or “presumed innocent,” until someone else is arrested.
THE FIGHT FOR JUSTICE
A couple of years ago, one of my clients was charged with a sensational case: he was accused of beating a person to death. He was a young, African-American male from a single parent home, located in an extremely rough neighborhood. However, he had graduated from high school and was attending a University away from home. He came home for the summer and was walking in his neighborhood with several other young men. Suddenly, a vicious fight began and a woman was literally beaten to death. Several witnesses identified my client as the killer. A few others indicated he was not the killer. Of course, my client steadfastly maintained his innocence. Nevertheless, he was arrested and charged with causing the victim’s death.
He was portrayed in the press as a killer and kicked out of his University because of the incomprehensible allegations associated with his arrest. Imagine, if you will, the sheer stress of being arrested and prosecuted for a homicide you know you did not commit: you are kicked out of school; unable to secure a job because you have a homicide arrest on your record; you are an outcast in your community; and, all your hard work to survive the unfortunate geographic lottery of your birth neighborhood is about to vanish as quickly as a whisper and you are facing significant prison time.
He was portrayed in the press as a killer and kicked out of his University because of the incomprehensible allegations associated with his arrest.
I argued for his innocence and demanded further investigation. His family steadfastly supported him. Certain members of the community wanted him in prison (or beaten) as quickly as possible. After a year of investigation, zealous advocacy and unimaginable stress, my client’s case was dismissed: a criminal defense attorney helped ensure Justice was served.
Decades ago, the infamous Central Park 5 were household names and synonymous with rape and violence. Indeed at the time of their arrests, law enforcement thought they did it and made them admit to it. Prosecutors were sure they did it and wanted to ensure they spent years in prison. The sitting judge was sure they did it or she would not have sentenced them. The public wanted blood simply because of the heinous allegations. And a United States President thought the death penalty was appropriate. After the young men spent decades in prison, it was revealed they were innocent of all charges. A criminal defense attorney helped achieve Justice and a President has yet to apologize.
A criminal defense attorney helped achieve Justice and a President has yet to apologize.
A colleague was recently on trial representing a client charged with murder. The prosecutor was sure the defendant was guilty. Law enforcement was sure he was guilty. Witnesses claimed he was guilty. My colleague, Jason Foy, was unable to control his emotions during his powerful summation because he was concerned that an innocent man might spend the rest of his life in a prison cell. His client was acquitted of all charges: a criminal defense attorney helped achieve Justice.
Last year, five boys stumbled upon a young girl sitting in a park with an older gentlemen. Thereafter, some of the boys, ignorantly and without an appropriate moral compass, decided it would be a good idea to have sex with the young girl in the middle of the park. The older gentlemen left the park and told law enforcement that the boys had just raped the girl. The girl agreed that she had been raped. The community and press wanted these young boys immediately jailed for their heinous crimes. The boys maintained their innocence, but their names had been released to the public. Wherever they went, their new surnames were “the rapist”: John “the rapist” attends St. Nicholas High School or Bob “the rapist” just left the store. Their lives forever tarnished by a permanent community label. What attorney is going to represent five boys charged with gang raping a teenage girl, in the middle of the park? Attorney Kenneth Montgomery, showing courage normally reserved for folklore, took this very difficult case and ultimately showed the encounter between the girl and the boys, although concededly immoral, was in fact consensual. Justice was obtained by a criminal defense attorney.
CLOSING ARGUMENT
While at my good friend Edward Wilford’s funeral, the Minister described Edward by saying, “…when you are standing up in court with the courage to confront the wrath and fury of the omnipotent criminal justice system, you are doing God’s work…” I agree. Criminal defense attorneys, whether at a table or inside of a courtroom, bare the armor of warriors. They often accept the unenviable task of doing the impossible, for the ungrateful and showing courage in the face of objectively insurmountable tasks. Their strategies, their preparation, their determination, their integrity and their commitment to the Pursuit Of Justice, is the purest form of a gladiator. They do not decide what Justice is, but play the most vital role in ensuring Justice is done. They fight with the ferocity of Titans and bare the wounds of heroes. They never forget the helpless and are a voice for the invisible. They are not The “Devil’s Advocate,” but Angels of God’s Work and true protectors of that elusive term: Justice.
They are not The “Devil’s Advocate,” but Angels of God’s Work and true protectors of that elusive term: Justice.
Xavier R. Donaldson, Esq. is a Senior Trial Counsel and Founding Partner of Donaldson & Chilliest, LLP, with offices in New York City and a former Assistant District Attorney in Bronx County. He is admitted to practice law in the Courts of the State of New York, the Southern and Eastern Districts of New York and the Second Circuit Court of Appeals. Mr. Donaldson has served as lead trial counsel to verdict on criminal matters including: murder, federal and state narcotic conspiracies, gang associated criminal activity, bank fraud, mail and wire fraud, immigration fraud, federal and state firearm conspiracies, domestic violence and a variety of other federal and state matters. Mr. Donaldson is the Criminal Law Instructor for the Criminal Law Section of the New York State Bar Exam and serves as Adjunct Professor of Trial Advocacy at Brooklyn Law School. Mr. Donaldson has served as the Administrator of the prestigious New York County Supreme Court Judicial Screening committee where he presided over the evaluation, vetting and interviewing of candidates for prominent seats on the New York County Supreme Court and has also vetted candidates for the Appellate Divisions of the State of New York and New York State Court of Appeals. To contact Mr. Donaldson, visit his firm’s website: http://www.dcnylaw.com.
