Posts Tagged ‘history’
Civil Law Vs Criminal Law
Tuesday, July 26th, 2011
Denver, Colorado Criminal Defense Attorneys – Part I: The Role of the Defense Lawyer
The criminal defense attorneys at Frankfurt & Trani, P.C. believe that they, as well as all attorneys in the Denver, Colorado criminal defense bar, play an essential role in our system of criminal justice. The following article is part one of a series describing the role that criminal defense attorneys play in our society and the challenges faced by those who choose this difficult profession.
Being a criminal defense attorney in Denver, Colorado today presents many challenges and difficulties not required of defense attorneys of the past. These challenges and difficulties increase the importance of the role of the criminal defense attorney in Denver and throughout the state of Colorado. What are the obligations and responsibilities faced by the criminal defense attorney in today’s legal climate?
1. Protecting the rights of the accused. The number one obligation of today’s criminal defense attorney is protecting the rights of the accused. Those rights come from the Bill of Rights as set forth in the U.S. Constitution. These generally include the right to be treated fairly by our criminal justice system. Specifically, they include the right to a trial by a jury of their peers, the right to be presumed innocent until proven guilty by “proof beyond a reasonable doubt”, the right to a speedy and public trial, the right to remain silent, the right to be free from unreasonable searches and seizures, and, maybe most important, the right to effective assistance of legal counsel. Each of these rights, guaranteed by the United States Contitution and its Bill of Rights, has been made applicable to all states, including Colorado, through the Fourteenth Amendment to the U.S. Constitution and various United States Supreme Court case opinions. Effective assistance of counsel means that a criminal defense attorney has the obligation to provide his or her clients, the accused, protection against government overreach. The criminal defense attorney does this by challenging government conduct that violates the rights listed above (as well as those not listed). A criminal defense attorney who fails to make reasonable efforts to do this for his or her clients does not provide effective assistance of counsel and thereby fails in his or her basic responsibility.
2. Defending the innocent. It is true that a large number of the criminal defense attorney’s clients have some level of criminal culpability. In other words, most of the lawyer’s clients are guilty. How the Criminal Defense Lawyer addresses those clients is addressed below. But what is the criminal defense attorney’s responsibility when he or she has a client who is innocent?
There are some in our society who do not believe that the government, generally by and through a prosecuting agent of a city, district or U.S. attorney’s office, prosecute people who are actually innocent. Unfortunately, a quick google search for “wrongly convicted” produces a litany of cases where people convicted of crimes are later proven to be innocent. In Colorado, we have to look no further than the Larimer County case of People of the State of Colorado vs. Timothy Masters.
The Timothy Masters case is a gross example of the damage that government overreach can cause an individual, as well as an entire community. After a 12 year investigation that began when Mr. Masters was just 15 years old, he was convicted of 1999 the murder of Peggy Hendrick in Ft. Collins, Colorado. Mr. Masters was sentenced to life in prison without the possibility of parole. Unfortunately, Mr. Masters’ conviction was obtained by Larimer County prosecutors without any physical evidence and with the assistance of questionable investigation techniques utilized by local law enforcement led by Detective Jim Broderick. In addition to the questionable methods used by Detective Broderick, it has now become clear that the prosecution withheld evidence from Mr. Masters’ criminal defense attorneys and that legitimate alternative suspects were not only not investigated, but were clearly ignored by investigators and the prosecution. In 2004, Mr. Masters successfully appealed on the basis of ineffective representation by his criminal defense team. He was appointed a new team of criminal defense lawyers who began to investigate the case. In early 2008, DNA testing conducted by a team of experts in the Netherlands retained by his new defense lawyers proved that Mr. Masters was actually innocent of the murder. Shortly thereafter, a Court vacated his conviction and dismissed the case against him. Unfortunately for Mr. Masters, government overreach, in the form of overzealous investigators and prosecutors bent on a conviction and career achievement, cost Mr. Masters 10 years of his life.
The repercussions of this case have been great. The city of Fort Collins and Larimer County settled a civil suit with Mr. Masters for $10 million. The funds to pay for this settlement are to be paid for from city and county funds; ultimately money funded by the tax payers. On June 30, 2010, the Denver Post reported that a grand jury has indicted Detective Jim Broderick of criminal perjury charges. In September of 2008, the Colorado Supreme Court ruled that the prosecutors in the case, Jolene Blair and Terrence Gilmore, now both Larimer County District Court judges, should be publicly censored for their failure to ensure that evidence was properly provided to Mr. Masters’ defense attorneys and for failing to seek evidence from police investigators that would have cast doubt as to Mr. Masters’ guilt. While such a consequence may seem minor, a public censure is a serious consequence for ethics violations of licensed attorneys in Colorado and is fairly rare.
To read more about the specifics of this travesty of justice, please read the July 5, 2010 article in the Fort Collins newspaper the Coloradoan, titled “A look back: Tim Masters Case“.
Ultimately, the point of the Tim Masters case is that innocent people can be accused and convicted of criminal offenses and that, sometimes, such convictions can have a serious impacts that can affect not only the person who is falsely accused, but the community in which it happens. To prevent this type of situation, criminal defense attorneys must take seriously the role of ensuring proper police and prosecutor conduct at every stage of every case that they handle.
So what is the responsibility of the criminal defense attorney in Colorado when representing an innocent client? In addition to upholding the client’s constitutional rights and conducting oversight on the conduct of police and prosecutors, it is to conduct an independent investigation in an attempt to prove the client’s innocence prior to trial and to thoroughly research every legal possibility of establishing the client’s innocence to a jury at trial. When this proves to be impossible, the responsibility of the criminal defense attorney shifts to establishing reasonable doubt as to the prosecutor’s case against the client.
3. Defending the guilty. As stated above, it is true that the majority of criminal defense clients are indeed guilty. Because of this, a common question asked of criminal defense lawyers is “how can you do that job?” It is true that providing assistance to individuals who have committed often serious criminal offenses is not for everyone because of the ethical and moral ideals that many people possess. With that said, it takes a special person to be a criminal defense attorney. Why?
Criminal defense attorneys have the same obligations to guilty clients as those discussed earlier in the article pertaining to innocent clients. The attorney must provide effective assistance of counsel, make sure that the government fairly investigates and prosecutes, and must defend the rights guaranteed to all by the U.S. Consititution. An attorney who is unable to do this will never be able to successfully practice criminal defense law. Attorneys who are able to do this generally have a stong belief in the adversarial nature of our criminal justice system and that every person, no matter what crime they are accused of, is entitled to representation.
Generally speaking there are two categories of guilty clients that the criminal defense attorney represents. The ones that deny criminal culpability and those who take responsibility for their actions.
The most difficult client for the criminal defense attorney to represent is the client who clearly has at least some criminal responsibility for what he or she is accused of. If the client is not taking responsibility, even when confronted by their attorney with strong evidence of guilt, the defense attorney must handle the case as he or she would with a client who they believed to be innocent. In other words, the criminal defense attorney must try to establish as much evidence as is possible suggesting that the client is innocent or establish enough questions in the prosecutor’s case to convince a jury that there is reasonable doubt as to the client’s guilt. It is here that most people, and even some practicing criminal defense attorneys, run into some serious ethical and moral dilemmas. It is here that the criminal defense profession obtains the bad reputation with many in our society. Why? Because it is in these cases where a criminal defense attorney who excels in trial practice techniques can often obtain “not guilty” verdicts even when the evidence strongly suggests otherwise. While each practicing criminal defense lawyer must deal with their own individual feelings that may result from such outcomes, they must ultimately rely on the notion that had the police and/or the prosecution properly done their jobs, the client would have been properly convicted and secondly, that our system of criminal justice requires that some who are guilty must go free to ensure that those who are innocent are not wrongfully convicted.
The second category of guilty clients that criminal defense attorneys represent are those that, in many cases, give the attorney the most satisfaction with their chosen profession. It is here that the criminal defense lawyer can have the most positive impact on society. When a guilty client is taking responsibility for their actions, the criminal defense lawyer can often have a positive impact on the life of the client and their loved ones. This generally occurs by helping the client obtain help with personal issues to address the root of criminal behavior and to reduce the chance of recividism. The most obvious example of this is in the situation where a client has been charged with possession of a controlled substance, i.e., an illegal drug. In most such cases, the client has been caught possessing the substance because he or she has a serious addiction. If the attorney can talk to the client about the addiction and how the addiction is affecting the client’s life or the life of the client’s family, the attorney can often convince the client that he or she can change their life and that obtaining drug treatment will be beneficial. Another example can be in cases where domestic violence treatment or anger management treatment can address serious issues that a client has that is not only causing criminal behavior, but is ruining relationships, families, or future opportunities. There are too many such examples to all be discussed here. Being able to offer such assistance to clients can have positive effects that are often life changing. In this capacity, the criminal defense attorney can not only help a client avoid serious legal consequences, but also have a real impact on that client’s life. Most often, much more so than any prosecutor, judge or probation officer.
Additionally, directing a client in a positive direction can often help the client avoid the potential serious consequences of the criminal justice system. When a prosecutor sees that a client is not only taking responsibility for their actions, but also obtaining some sort of help to help reduce the chances of recividism, that prosecutor is generally more likely to offer the client a less severe legal consequence in the form of a plea bargain. When a judge sees this same, that judge is more likely to sentence that client to a less severe form of punishment than that which would be otherwise be imposed.
In summary, the criminal defense attorney has an essential role in our nation’s system of criminal justice. Without the availability of effective legal representation for those accused of crimes under our federal, state, and municipal statutes, the potential for damaging government overreach would be great. It is those attorneys who practice Criminal Law as their chosen profession who protect all of us from this threat and make our criminal justice system the best that the world has to offer.
About the Author
Mr. Sauner writes and blogs for the Denver, Colorado criminal defense and personal injury law firm of Frankfurt & Trani, P.C.
http://frankfurt-trani.com/criminal-defense-attorneys/
Criminal and Civil Law Attorney in Philadelphia
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