by Jerry A. Ballarotto

While there are many lawyers in America, there are very few fully dedicated criminal defense attorneys. In an environment where cash is king, few recent law school graduates choose a career in criminal defense; the emotional cost is just too high. No words can describe the pain and fear I have experienced sitting next to a client facing a jury verdict in a death penalty case. When the client and their family retain me to defend them, they place me in charge of all their hopes, dreams, and worst nightmares.

As the defendant’s lawyer, I am left to make all the tactical and substantive legal decisions of the defense. This includes not only the broader defense strategy, but also the tone and substance of every question on both direct examination of defense witnesses, and cross examination of prosecution witnesses; often including the family of a deceased victim. It all falls on my shoulders.

The uninitiated will often ask, “How can you represent a guilty person?” The simple answer is that no client is guilty until a jury of 12 unanimously concludes, beyond a reasonable doubt, that the client is guilty. It is in this analysis that a professional defense attorney learns to think differently from most of the rest of us.

When a client walks into a civil attorney’s office, the conversation often begins with the lawyer quizzing the client about what they did or did not do. That’s not what happens when a client walks into my office. I am not interested in what a client did. Frankly, to an experienced defense lawyer, it doesn’t make a bit of difference what they did. The real issue is, “what can the government prove they did?”

This is where the role of a prosecutor and a defense attorney go separate ways. A prosecutor must search for the truth. A prosecutor must be completely satisfied of the defendant’s guilt or they should dismiss the case. It is not a question of whether a prosecutor can convict the defendant. There are many men and women in jail in America who are actually innocent of crimes for which they have been convicted and sentenced. That is the horrific logical conclusion of a justice system that is based on an adversarial exchange.

The defense lawyer, on the other hand, wants to know only what the government’s accusations are and how they intend to prove them. This analysis inevitably leads to questions such as: “Did you make any statements to the government? Do you talk on the telephone? Do you use email? How do you think the Government came to investigate you?” and finally, “Who do you think will testify against you?”

The reason a defense attorney does not focus on what the client did is because that is not the ultimate question our criminal justice system asks. The Constitution only speaks in terms of “guilt” and “non-guilt.” There is no reference to “innocence.” In the final analysis, a “guilty” verdict can only be reached if a jury unanimously decides, beyond a reasonable doubt, that the defendant committed the specific crime they are charged with having committed.

And such a verdict requires overcoming every defendant’s right to rely on a presumption of innocence, having no burden of proof on any subject during the entire jury trial process. That’s why in so many cases the defendant is acquitted (found not guilty) without ever testifying or providing any evidence whatsoever. Naturally, all this plays out within the framework of the Rules of Evidence, which I will discuss more fully in a later article.

Such a result is possible because a jury in America is never asked to determine whether a defendant is “guilty” or “innocent.” They are only asked to decide if the Government has convinced them, beyond a reasonable doubt, that the defendant did what he is accused of doing. The Constitution requires that any degree of certitude less than certainty beyond a reasonable doubt must result in a “not guilty” verdict. Often misunderstood is the fact that a verdict of “not guilty” is not a verdict of “innocent.” And conversely, proof beyond a reasonable doubt does not require proof to a mathematical certainty. Indeed it is substantially short of that mark.

Proof beyond a reasonable doubt is defined as the kind of proof that would cause a reasonable person to act in a matter of importance in their own personal affairs. It is the highest degree of certitude in the land, but certainly not foolproof. Unfortunately, juries make mistakes and convict the innocent or acquit the guilty every day. This is where the defense lawyer earns their keep.

It is on the seams between these principles that a defense attorney lives. Like a curve ball pitcher, the defense attorney spins the law and dances the facts to obscure, not necessarily the truth, but certainly the version of the facts the prosecutor is attempting to weave into a tapestry of conviction. Added to these complexities is this little twist: at the conclusion of every criminal trial, just before the jury begins its deliberations, they are told by the judge, “take this case and decide it without being influenced by bias, passion, sympathy or prejudice.” They are asked to perform this impossible task even in light of the fact that both the prosecution and the defense prey upon these emotions at every step of the process.

For these reasons, when a client steps into my office to discuss their representation, I never ask, “What did you do?” Not only does it make no difference to me, but more importantly it makes no difference to the administration of what we loosely call “justice” in America.

Mr. Ballarotto is Of Counsel to Stark & Stark working with the firm’s Criminal & Municipal Defense practice and Corporate Investigations & White Collar practice groups where he focuses on high-stakes criminal defense and significant white collar and corporate investigations. Mr. Ballarotto is also the published author of the novel “Worthy of Trust and Confidence.”

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