Later, he confessed to everything.

Charged with 1st degree murder, he found it hard to plead guilty and check himself into a lifetime of prison, so he went to trial. His only hope lay in two possible outcomes: the jury would feel some sympathy for him and let him off with less than Murder 1 or the facts, as they came out in the trial, wouldn’t support the full charge. A mosquito had more hope of surviving the winter than Jim did of getting any leniency.

I was appointed to defend Jim.  How could I defend a guilty person?  The answer starts with: he was guilty…but of what?

When the Medical Examiner who conducted the autopsy on the victim testified, he broke the case wide open for Jim.

To prove Murder in the 1st degree, the prosecution must show that the killer “premeditated and intended” to kill the victim. That means the killer had some time to think about things, to realize what he was doing and, if possible, stop before death. For instance, if someone shoots a victim once, you could say it was intentional or maybe even accidental. But the third, fourth, and fifth shots would certainly be premeditated. In Minnesota, 2nd degree murder is defined as “intentional but without premeditation.”

Justivce means not only convicting a guilty person but also making sure the conviction fits exactly what the person did. Which one was Jim guilty of?

The Medical Examiner testified about the cause of death—choking around the throat that cut-off air to the victim which suffocated her. But…in this case, when Jim started to choke her, he broke a part of her spine that would have caused death instantaneously, without the long suffocation. For the defense, the Medical Examiner opened a huge door.

If Jim had broken her spinal column quickly, killed her instantly, then how could he have thought about what he was doing? How could he have premeditated the killing? He certainly intended to kill the girl, but did he have time to contemplate it, to premeditate the killing?

The jury decided he did not and found him guilty of 2nd degree Murder.  You may disagree that he deserved a break but to answer your question of how could I defend a guilty person, this case shows you how. I have to admit it wasn’t easy, but I think justice was done here.  What do you think?

The post How Can You Defend a Guilty Person? Part II appeared first on Colin T. Nelson.

I had the wonderful opportunity the other week to be invited to speak to our local chapter of Sisters in Crime, a national writing group composed of both women and men dedicated to supporting mystery writers.

They asked me to talk about my experiences as a criminal defense lawyer over the years and about my new book, “Reprisal.”

I was flattered to be invited and anxious to dispel a myth I think most Americans have about out criminal justice system.

I explained that the legal and ethical job of a prosecutor is to “seek justice.” In contrast, the legal and ethical duty of a defense lawyer is to “zealously represent and advocate for his client.” Notice there’s nothing mentioned about justice in the duties of a defense lawyer.

Of course, he may not do anything illegal, dishonest, or unethical to zealously advocate for a client, but seeking justice has nothing to do with his role.

Surprise you?

Isn’t the purpose of the criminal justice system to find the truth, to find justice? That’s the name, the criminal justice system, after all!

That certainly is the goal of the system, but a defense lawyer has only one goal: to advocate for his client. And the truth is, in all the years I’ve represented criminal defendants, they rarely want justice.

They want to get off!!

Even if guilty, they want to be excused, to be given a second chance, to be dealt with in a lenient way…to get off somehow.

The beauty of the system is that the government is burdened with the job of proving someone they’ve accused of a crime guilty beyond a reasonable doubt–only if they can. The defense lawyer has to challenge that proof. Hopefully justice wins, but the defense lawyer has a critical role to play: checking the power of the government.

Many times, the only person standing against the government is the defense lawyer. So, it makes sense that his ethical duty is to do anything possible and legal to get the client off.

Does that make the defense lawyer a crook himself?

No, it’s the role devised years ago. And I can say from years of experience, it works well.

It also means that a prosecutor shouldn’t always work for a conviction and the maximum penalty for accused people. If the prosecutor learns during the case, for instance, that the accused is innocent or merely guilty of something less serious, the prosecutor has a duty to seek justice and dismiss the case or reduce its severity.

Should a defense lawyer have a different role?

Are too many criminals “getting off” as a result of clever defense lawyers?

Let me know what you think.

The post Why Don't Defense Lawyers Seek Justice? appeared first on Colin T. Nelson.