My Approach: Criminal Defense Perspective

I am a criminal defense attorney. I think it is a great job to have, though I believe it is probably not a fit for everyone, including most attorneys. Every day is unique, and all cases are different and present complex challenges for those I represent. I have been practicing now for many years, and currently have tried over 50 felony and misdemeanor cases to a Judge or jury, with a variety of other contested settings. Many people in the criminal justice system, including many attorneys, often center their thinking on what the "truth" is. I think this is an understandable rationale for how one should think if accused of a crime. I mean, realistically, in almost any other scenario - the truth matters! Right? In the context of criminal defense...WRONG! We teach our children to always tell the truth. I went to The University of Texas at Austin - and on the famous tower located at the center of campus, the slogan is inscribed, "Ye shall know the truth and the truth shall make you free." Curiously, when representing an individual accused of a crime, the truth rarely, if ever matters.

The following is my approach to criminal defense. Early on in my career, I read an article of an interview of Austin, Texas criminal defense attorney, Chris Gunter. If memory serves me correct, Mr. Gunter was representing the famous serial killer, Kenneth McDuff. What I remember perhaps most about the article, and what has stayed with me many, many years later, is how Chris Gunter responded when asked how he thinks about a case when representing any given individual. The full article link is located here: I remember reading this portion of the article, and it has perhaps served me as the best piece of advice I've always taken very close to heart. The specific excerpt I am referring to is:

...I asked Chris if he would just as soon not know if his client is guilty? "Not necessarily...sometimes it just really depends on what the facts are. Very, very seldom do I look at a client and say, Did you do this or not? My general practice is to let the client tell me what they think is important and I of course am asking them what happened, tell me what you can, but I don’t really lean on people to. I’m more interested in knowing what the State can prove than I really am in knowing what the defendant’s story is. Obviously the client’s story is important, and we spend a lot of time together talking about the facts, but I generally let them tell me what they want to tell me. What I’m more interested in is what the prosecutor is going to be able to prove."

I remember reading this when I was a very young attorney, eager to learn as much as I could about practicing criminal defense. So, the actual truth doesn't matter? After many years of practice, I realize now more than ever, this is the case more often than not. What takes a larger precedent, and what is incredibly more relevant - is fully analyzing exactly what the state can prove at trial. Period. This should be the centerpiece for how any criminal defense attorney should model their though process (in my humble opinion).

Looking back, I am glad I read this article because it has shaped my entire practice and perspective when approaching how to handle a case. THE TRUTH DOES NOT MATTER - WHAT MATTERS MOST IS WHAT THE STATE CAN PROVE AT TRIAL. This mindset recently came to my attention after reading the legal book, Compelling Evidence, by Steve Martini. In the book, the defendant in the case asks the attorney what the odds were of her prevailing at trial. The conversation exchange is written as follows (I redacted portions that are not pertinent):

Defendant (Talia): "Tell me," she says. "What do you really think? What are my chances?"

Attorney: "Ask me in a week, after I've seen the evidence."

Similar dialogue is spoken in the famous Tom Cruise movie, A Few Good Men. In the movie, I remember, Tom Cruise is throwing ideas around for how to mount the best possible defense. At one point, he gets a bit miffed at his co-counsel, played by Demi Moore. In the movie, Tom Cruise states the following:

Kaffee (Tom Cruise): "You and Dawson, you both live in the same dream world. It doesn't matter what I believe. It only matters what I can prove! So please, don't tell me what I know, or don't know; I know the LAW."

I list these excerpts because the thought process is very relevant in the real practice of criminal defense. In Compelling Evidence, when asked what her chances were, the attorney did not respond anything about what may be true, or untrue. He remarked that he would need to see the evidence first before giving his assessment. In A Few Good Men, Tom Cruise very aptly states: "...It doesn't matter what I believe. It only matters what I can prove!" When interviewed, Chris Gunter summarized his thinking revolves solely around "what the prosecutor is going to be able to prove."

When I listen to the relevant set of facts during an initial interview with a current or prospective client, my thought process immediately begins to evolve scenarios as to what possibly could happen if the case should proceed to trial. I start analyzing possible search warrant issues, what possible witnesses will say and/or how they will testify, different scenarios for how the trial may unfold. I do not focus on what the actual truth is. Why? Simply put, for the same rationale utilized by Chris Gunter, Tom Cruise in A Few Good Men, and the attorney in Compelling Evidence. Similar to a doctor analyzing a surgery, I try to base my assessment of the facts from an impartial standpoint. A surgeon generally only focuses on what needs to be done to successfully complete the surgery. I think in many circumstances, they do not even view their patients as people, but just as work that needs to be done. If they get too emotional, or personal, I'm sure it may affect whether they can perform the surgery in optimal fashion.

Similarly, I do not view any particular case by analyzing whether the person is "Guilty" or "Not Guilty." Honestly, I really do not even care. I simply try to ascertain - based on the information given to me - what can the state prove if the case proceeds to trial? This mindset, in my opinion, is crucial to being a successful criminal defense attorney. The truth takes a back seat to what can actually be proved at trial.

Why is this the case, many may wonder? A trial occurs, in most cases, at least months, and in most cases, years after the alleged incident occurred. During the course of this time period, witnesses memories may fade. Their statements may change, be altered, or emotions may temper. Witnesses may lie on the stand, or embellish or exaggerate the truth. Certain witnesses may be more likable to certain jurors, and as such, their testimony perhaps to be deemed more credible. Certain facts may not be able to be entered legally into evidence, or conversely, certain facts may be able to be considered as evidence, that could potentially change the outcome of the trial (perhaps prior criminal records, certain facts which could damage the credibility of witness testimony, etc.). Often the citizen accused may be guilty of one criminal offense, but perhaps the state filed the offense under a different charging instrument (by indictment/information). Thus, in this scenario, the state may fail in being able to successfully meet their burden of proving the offense as charged with the evidence that will ultimately be considered. The possibilities are endless.

The one constant cornerstone of this thought process, obviously - is that the actual truth takes a backseat to analyzing this simple scenario: WHAT CAN THE STATE PROVE AT TRIAL?