Someone asked me how a criminal lawyer could ever represent a person who‘s guilty.
I told ‘em that was it was easy. My job as an attorney was never to judge, but to uphold something called the Constitution.
It’s the one time, however, that a guy planned to lie to a jury that really got to me.
I told the Philadelphia Common Pleas Court judge in no uncertain terms of his intent to lie, and she told me I was stuck with him. No matter how hard I argued, the judge would not remove me from the case. I was forced to navigate a path I would not want to wish on my worst enemy.
I can’t reveal details because of confidentiality concerns, but my client was accused of shooting a security guard while shop-lifting. The guard survived and was not too shy about showing his wound to a camera crew filming him following a preliminary hearing. His interview and my response to the press appeared on the Six O’clock News.
My guy rejected the prosecutor’s offer in this high publicity case. I requested a jury trial. In the United States, a person is presumed innocent and it’s the burden of the district attorney to prove guilt beyond a reasonable doubt. I never had a problem with ensuring a prosecutor prove his case in court. But the state’s lawyer must prove guilt for each offense, and that’s where one can often overplay his hand, particularly in “over-charging,” believing a judge will acquit a defendant on the most serious charge, but convict on the ones a reasonable person would agree upon.
I’d consider a “compromise verdict” as a win for my client. With such a split decision, a defendant would be found guilty of lesser offenses and therefore face less time in prison. The most draconian sentence I ever saw imposed was 35-to-70-years for one of my clients. It was what I call “hard time,” particularly when you’re only 22 years of age at sentencing and you never physically injured anyone while brandishing a gun during a series of hold-ups.
So, I spoke to the press in this actual shooting case, planting the seeds for a defense that had a decent chance of succeeding. It was based on the truth, and showed there was no intent to harm, but was the result of an accident the complainant brought on himself. I dug up evidence that showed the complainant had a propensity for violence. I documented it via a lawsuit alleging the “victim” resorted to violence in similar circumstances.
We got good coverage, but while firming up this defense with my client, he disagreed and told me he had been reading the law and learned that not only did a defendant have a right to testify on his own behalf; he could tell a lie. He might have been right. But, looking him in the eye, I told him I would not suborn perjury and if he insisted, I would get out of his case and find someone else to represent him.
That’s how I ended up asking a judge to remove me from the case. “No, Mr. Contos,” the jurist — the Honorable Carolyn Engel Temin, one of the most learned in Philadelphia — said to me. She added that I would just be passing off a problem to another lawyer who would not know what I knew.
How can any honest person deal with such a dilemma? There is a provision in the law for this, and I thank my lucky stars I faced it only once. When you know a person is going to lie and you can’t talk him out of it, the Code of Ethics recommends you go forward with the defense, but ask the witness one and only one question when taking the witness stand. “What is your story?”
Don’t ask any follow-up questions. Don’t offer any attempts to clarify something on what is called “re-direct” examination of a witness. Lastly, when providing a closing argument, don’t refer to anything the witness had testified to under oath. In essence, you give no credibility whatsoever to anything he might have said!
My client did the right thing. He never testified and therefore, never lied. Although he was found guilty, he got a standardized sentence as opposed to a maximum one he could have gotten.