How Can You Represent That Man?

AS A CRIMINAL DEFENSE LAWYER, I OFTEN HEAR AN ASTONISHED, “HOW CAN YOU REPRESENT A MAN CHARGED WITH SEXUALLY ASSAULTING A CHILD?!”

This is how.  

In a recent jury trial, I am sitting by my client Joe Smith (all names in this post are fictitious), in a room full of strangers, including potential jurors. Above us all, between the American and Colorado flags, sits Judge Thompson, in a nondescript black robe that nonetheless conveys ultimate authority in the courtroom. Two plainclothes deputies sit behind us, ready to spring into action should Joe attempt to escape or should someone attack him.

It begins.

“My name is Judge Thompson. The matter before you today is a criminal case. The defendant, Joe Smith, is charged with two counts of sexual assault on a child.” They hate us, now, I think, for interrupting their daily routines for this despised crime.

 She continues, "The defendant has pleaded not guilty."

I feel very alone as I look for reactions to the charges. I generally enjoy my alone moments, but not this one. Make sure you are sitting close to Joe, I tell myself. Don’t recoil at the charges in the jury’s presence. 

Life in prison for sexual assault on a child.

Few crimes are more heinous than sexually assaulting a child. Coloradans so fear sexual predators that our law allows us to send convicted offenders to prison for the rest of their natural lives. Very few ever get out on parole.

As Judge Thompson continues, I tell myself, They all think he’s guilty, even though I haven’t said a word in his defense yet.  I know what’s coming from the prosecutor, too. She will paint my client as a vicious animal, the creator of a cruel and violent household environment, to maintain power and control over the alleged victim and her mother – Joe’s live-in. I look over the potential jurors, thinking, They don’t even want to hear the evidence or render a verdict: “Just sentence the b_______ and let us go home!" 

“Frontier justice: hang ‘em high!” 

One of them confirms my thoughts. He volunteers to the judge: “Those people ought to be strung up by the testicles (not his word) and shot." Keep a poker face, I remind myself, hoping Joe is doing the same. The judge excuses the man from further service in this case. Other potential jurors simply say that they cannot pass judgment in such a case.

I want to clear a pathway for the jurors, if warranted by the evidence, to a not-guilty verdict, regardless of their personal biases. For this, the jurors must recognize that our constitutional rights are paramount.

“These are very difficult charges for most people,” I say, when it’s my turn to speak, three hours after the trial starts. “This is not shoplifting a comb. It’s a horrible crime.” 

Mr. Jones provides an opening.

I look at Mr. Jones, a potential juror, recently retired from the Navy after nearly 25 years, a coach of youngsters in three sports, a family man who plans teaching as a second career. All my training and experience is screaming, DO NOT PICK MR. JONES!  as his military career predisposes him toward the government, and his second career shows he is committed to the well-being of children. 

            “Mr. Jones, have you been in battle?”

            “Yes,” he answers.

            “Did you take an oath when joining the Navy?”

            “Yes.”

            “What was that oath?”

            “I solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic,” he answers.

            “Mr. Jones, do you believe in the presumption of innocence."

            "Yes," he replies.       

            "Why?"  

            "It is essential to our freedom."

            I then ask, "Is it one of those rights you swore to uphold when you joined up?"

            "Yes".

            "One of those principles you defended on the battlefield?"

            "Yes." 

A pathway to justice.

The pathway has appeared. Now the rest of the potential jurors know that among them is a man who has put his life on the line to defend basic civil rights at stake in this trial. I now want to keep Mr. Jones on this jury. The risk is, he might view Joe as a threat to society. But I trust my instincts, and keep him on.

The verdict.

By the end of the trial, I am not the only one willing to speak for Joe. The jury, with their foreperson Mr. Jones, find Joe not guilty of both sexual assault charges, although, guilty of other, less serious, non-sex related crimes toward the child's mother. This was, of course, a huge victory for Joe, who had maintained his innocence of the sex charges from the beginning.

Why I can represent that man.

If we attorneys will not use our legal skills, education and experience to speak up for those who need a voice, then who will? Like many lawyers, I speak up for others, even the guilty (although they’re innocent unless proven guilty, in our country), and take on unpopular causes, when no one else will. By doing so I pay tribute to the lives, fortunes and sacred honor that our nation’s founders - and countless others since – have pledged for the defense of fundamental American liberties. 

For me, as an American lawyer, Joe's trial was another opportunity to speak up for someone’s life, and a victory for civil liberty. Mr. Jones and my Dad did it in the military; and, now, I get to do it every day in the courtroom. And whenever I feel so alone at the defense table, this answers the question, “How can you represent that man?”