22 January 2013

The Passive Defendant


I have often wondered the ease with which law enforcement obtains confessions. Without confessions many criminal charges would not result in convictions. Weekly I will speak with a defendant newly charged to determine the facts of the case thinking to myself that this defendant can beat it, until we get to the part of whether he said anything to the police when arrested. And yes, of course, the defendant admitted that he made meth, or was the one who burgled the garage, or punched his fiancee. I ask the defendant why? Usually the response is "Well, I did it." Either defendants do not understand that the issue is not whether they did it, but whether the state can prove it, or they simply do not care. Exceptions do exist, but are few. One can only conclude that most of the people criminal attorneys represent really don't care what happens to themselves. They have nothing; they have no prospects; they merely exist from day to day without much thought for tomorrow for that would be too depressing. None verbalize this and all voice their dissatisfaction with the idea of going to jail or prison, but few put up a fight. I also ask defendants why they want to make it easy for the state to put them in jail or have them supervised. They have no answer for this and one can only assume that it is easier-less stress. The idea of actually going to trial frightens them terribly. Trial is stressful. At trial the defendant will be required to not only confront his own demons, but demonstrate to others that he is a decent sort of fellow. Sitting on the stand, answering questions in front of 12 people who are to judge him is, as I say, a terrifying idea. It is so much easier to just plead guilty, do some time in jail or probation and return from whence they came. It is easy for a criminal defense attorney to fall into this same pattern when representing people charged with a crime. If the client isn't putting up a fight, why should his attorney. Cut the best deal available from the prosecutor, plead the defendant and have him sentenced to whatever the authorities that be consider appropriate. Easily done. Little time is involved; no trial preparation, no finding witnesses, no filing motions, no writing briefs, etc. A criminal defense attorney must guard against this. Sometimes there really isn't much that can be done for a defendant, but even if the defendant is a push over, the attorney is not required to be and shouldn't be.

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