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Sunday, April 22, 2007


The Duke Lacrosse rape case should have been a wake-up call about many issues. One of those issues should be the role of the criminal defense lawyer.

“How can you defend them?” is a question all criminal defense lawyers have faced – from strangers, associates, friends and even family. The question is usually accompanied either by a look of disgust or a look of incomprehension; sometimes both.

We in the criminal defense community know why we do this. We know how much we care about the rights everyone in our society enjoys. We know that our job gives a voice to those rights and protects all of you from those rights being ignored. We in the criminal defense community know that we are trying to protect all of you from false allegations, false arrests, improper convictions and inappropriate sentences. We are the people who stand between you as an individual and the power and resources of the state/government.

Maybe it takes a highly publicized case like the Duke case to shake you to realize that false claims are made and people can be convicted, jailed, and have their life ruined for something they didn’t do. Criminal defense lawyers are the people who fight to prevent that from happening. We fight to ensure the system stays honest. There seems to be a general acceptance that if an arrest is made, or if a conviction occurs, it must be correct. Maybe now more and more people are realizing that isn’t so. I’m not suggesting you need to completely distrust the police, the prosecutors and the courts. I’m simply saying you shouldn’t so readily rush to accept their version. It is important to ask questions. It is important to presume innocence unless guilt is proven.

Here is a true story:

I (attorney Richard Stevens) had a young military client who was accused of a particularly heinous crime. He was placed into military jail (pretrial confinement) awaiting trial. He sat in his jail cell for nearly seven months waiting on his day in court.

The military investigators were convinced they had their man. He was guilty. The local prosecutors were convinced they had their man. He was guilty. The community was convinced they had their man. He was guilty. The base commander calmed the community’s fears about the crime by proclaiming that my client was behind bars.

I remember, like it was yesterday, visiting my client in jail to tell him the prosecution notified me they were considering making his case a capital case – they were considering asking for the death penalty if he was convicted. I will never forget his father looking me in the eyes and imploring me, as only a father can, “Don’t let them kill my son for something he didn’t do!”

The lead military investigator actually laughed at me when I raised some questions about the case. He saw my questions as ridiculous. They had their man. My defense co-counsel and I investigated this case as we would any case. We don’t prejudge our cases. We don’t choose when to work a case and when to let it slide. We talked to witnesses, we followed leads, we established a timeline. We began to poke holes in the investigation and the evidence. The pretrial hearing lasted for days. Witness after witness testified. The holes in the investigation and the evidence grew wider. As I cross-examined the lead investigator about these problems with the case, his disdain was obvious. The look on his face said, “How could you represent him? How could you try to undermine our investigation?”

After the pretrial hearing was over, the hearing officer addressed the problems with the case, but said there was sufficient evidence to go forward to trial. But, the questions we were raising about the case had the interest of the supervising government attorneys (above the local level). They didn’t jump to the conclusion that the case was solved. They demanded a new investigation – although the lead military investigator protested it.

(I think you all know where this is heading…)

A new investigation was launched. The next door neighbor was questioned. He started to act strange. He was questioned again. The neighbor confessed to committing the crime. The forensic evidence that had been collected matched the neighbor. The military investigators had been wrong! The local prosecutors had been wrong! The community had been wrong! Fast forward…

My client was released from military confinement. The neighbor was charged, convicted and is now serving life in prison. My client has since married and he and his wife have had a child. Just think how different the course of my client’s life would have been if we, as his defense attorneys, had accepted what the military investigator and local prosecutors were telling us? If we had prejudged our client’s guilt and just went through the motions instead of zealously defending him and pointing out the flaws in the case?

We were just doing our jobs. We were doing what we, and defense lawyers around the country, do every day and do in every case. We were zealously defending our client, and it turned out our client was innocent. We zealously defend all our clients – and we are too often maligned for doing this. Remember what I said above. The military investigator laughed at me for asking questions about the case.

Maybe next time you hear about a criminal case you will catch yourself before jumping to conclusions. Think about the story above. Think about the Duke Lacrosse case. Don't prejudge the case and don't pass judgment on the defense attorneys defending it.

Here is an interesting opinion by Jonna Spilbor:

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC

Blog postscript: Attorney Frank Spinner and I (attorney Richard Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens & The Law Office of Frank J. Spinner for a free consultation.

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