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Macon Lawyer Frank Hogue on why even a guilty person needs effective representation

Posted by Patrick Kunes | Apr 30, 2014 | 0 Comments

“How can a criminal defense lawyer be doing a good thing by working toward a not guilty verdict in a case where he or she knows the client committed the crime?”

It's a fair question and one I answered for myself 25 years ago when I dedicated my professional career to criminal defense. I studied law under superb teachers at Mercer, one of whom gave the best answer to this question, an answer I adopted and later taught to my own students at Mercer these past dozen years in a class on advanced criminal trial techniques. My version of the answer goes like this:

Legal representation makes possible the client's meaningful participation in the resolution of a dispute, whatever that dispute may be, including a dispute with the government over whether the client committed a crime and whether and how the government may punish him. If a government can accuse an individual and punish him, then, if the individual is to have any say in it -- if he is to be treated like a person -- that “say” can only be in the form of a challenge to the government's case.

If we wish to prohibit our government from simply punishing those it accuses, bypassing altogether the burden of proving the crime and then justifying its punishment to society, the accused's challenge takes the form of his right to say to the government, “prove it.” Even if he's guilty. Saying “prove it” puts the government's case to the test -- a public trial by jury -- where the level of proof required must remove from the minds of jurors every reason to doubt the government's case. That, quite simply, is at the heart of our American model of criminal justice.

Saying “prove it,” in addition, necessarily removes from the accused any expectation that he simply admit it. He may deny the deed even if he did it. It also requires the lawyer to challenge the government's case at every turn on his behalf -- filing pretrial motions challenging searches, seizures, interrogations, and the like, as well as cross-examining witnesses in order to put to the test what they claim to have witnessed, even when the lawyer knows his client is guilty.

Why did our founders create it this way? Because it's the only way to reduce the possibility -- we'll never eliminate it -- that our government will punish the innocent. And, as a society, we abhor the punishment of a single innocent person, even though, as we know by the spate of exonerations in this age of DNA, many innocent people still pay a heavy price for their wrongful convictions. So, if each one of us is to enjoy a measure of security from a government with the power to inflict severe harm, including death, there is no better way to provide it than the system we've inherited. There is no other way to protect the innocent than to give to the guilty the presumption of innocence, the right to legal counsel, and the right to challenge the government to prove the truth of its case.

Is there any better way to do it?

Franklin J. Hogue is with the Macon law firm, Hogue & Hogue, LLP.

http://www.macon.com/2014/04/30/3072980/hogue-on-representing-a-guilty.html


Read more here: http://www.macon.com/2014/04/30/3072980/hogue-on-representing-a-guilty.html#storylink=cpy

About the Author

Patrick Kunes

Patrick Kunes is the most recent addition to Kunes Law Office, having been admitted to practice in November of 2008.  He graduated from Tift County High School in 1999, where he received a Governor's Scholarship through the Georgia Scholar Program. He attended the University of Georgia where he received a B.A. in History in 2003.

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