How Do Lawyers Defend the Guilty?

Did you know that 90 to 95% of all criminal cases result in some form of plea bargaining? Are you aware that most people charged with a criminal case will, at some point, consider whether or not they should take a plea? In this video, we’re going to discuss some of the factors that go into that decision and address an important topic that affects us personally and professionally: whether a person who is innocent of a crime should still consider taking a plea bargain or even discuss it with their lawyer.

The main question we hear all the time is, “How can you defend guilty people?” In our system, I believe everyone deserves a defense. And one of the things I tell people is that for the system to work, we need to vigorously defend even the most despicable criminals. By doing so, we protect the innocent, because if we’re willing to fight that hard for the guilty, we should fight even harder for the innocent.

And that brings us to the question: What do we do when we have a client who we believe is truly innocent? It’s interesting how you explained it, and I think every lawyer may rationalize it a bit differently. But for me, I always say that defending a person I know is guilty is actually quite easy. It’s not easy in the sense that the case is uncomplicated—these cases often come after lengthy investigations with a lot of evidence to review. You need to do a lot of investigation, consult experts, forensic specialists, psychologists—whatever the case demands. But mentally, psychologically, I already have a framework in mind. When I know a person is guilty of at least some crime, I know the steps I’ll take. I need to understand the circumstances that led to the criminal behavior and figure out how to ensure it doesn’t happen again. I know how I’ll present the situation to the judge or the prosecutor after doing my due diligence.

But what really keeps me up at night, and I think what keeps you up at night, too, is when we’re working with a client we believe is innocent. I’ve had it happen where I go to the jail and meet a person for the first time, and I get that sinking feeling in the pit of my stomach—I think this person is actually innocent. I think you and I have both texted each other after visiting a client for the first time, saying we had that feeling.

I do feel that way from time to time, and it’s extra pressure when it comes to going to trial. But I think our approach stays the same. Whether the client is innocent or guilty, we treat every client the same. We go through all the steps, fully investigate the case—we can’t short-circuit the process just because we think someone is guilty. In your approach, you’re thinking more holistically. You’re asking, “What if this person is convicted? How can we mitigate that outcome as much as possible?” You’re focused on getting them treatment, addressing mental illness, drug addiction, homelessness—whatever the root causes of the behavior are, and getting them the help they need to prevent it from happening again.

And I think what makes us effective as a team is that while you’re looking at these broader issues from the very beginning, I’m often looking for every possible defense to get the client out of trouble.

And then the flip side is, even when we get somebody out of trouble, we’re still focused on treating the person so they don’t come back. It’s a dual-pronged approach we use.

Yeah, I agree with that. I see a problem, and I see suffering, pain, and hurt. My mind races for a solution—not just to win the case, but to fix the underlying issue. So, we balance each other out in that sense.

But for the purposes of our discussion today, when you have a client you believe is innocent, this adds additional duties and considerations for us as lawyers. One of the first things is that we have a duty to engage in plea bargaining. There’s a Supreme Court decision, for example, that says as part of our Sixth Amendment constitutional obligation to our clients, effective assistance of counsel requires effective plea bargaining—even when you know the person is innocent.

So, how do you reconcile that with what most people imagine? If a person is innocent, you set the case for trial, let the jury decide, and argue your heart out.

Well, as you said, it is our ethical duty, and the law tells us we must engage in plea bargaining. Any offer from a district attorney—or even if the judge makes an offer—is something we have to present to our clients, and we have to counsel them on it. In some cases, it’s a matter of math. The offer is so good that the risk of going to trial isn’t worth it. I mean, we’ve had cases where people have been offered one or two years in custody, but if they lose the trial, they could face 30 years, 35 years, or even a life sentence. So, it’s almost a balancing act—are you willing to take that risk?

And what you’re saying reminds me of something that happened just a couple of weeks ago, when we had a client I genuinely lost sleep over, believing they were innocent and fighting for their life. They were charged with a homicide. After thoroughly examining the prosecution’s witnesses, we received a probation offer. So, what do you do with a client you believe is innocent, who’s looking at life in prison, but now has the opportunity to get probation? Do you tell them, “If you’re innocent, don’t take it—trust me to get you out of this”? But then, if they trust you and you fail, it’s on your conscience for the rest of your life—knowing that person is in prison for the rest of their life. That’s heavy. That’s real. It’s very difficult at times.

How I explain it to clients is that every trial is its own drama. Each time we bring 12 jurors into the courtroom, they have their own experiences and opinions. And what’s even more telling is that there have been trials I’ve done, and trials you’ve done, where we knew 100% that the client was likely guilty of what we were trying. Yet, the jury found them not guilty. On the flip side, we’ve had trials where we were convinced by the evidence, but the jury didn’t see it the same way.

We know, deep down, what the risks are—jury trials aren’t guaranteed. So, I try to convey that to the client: Look, it’s your life. I go home; you’re the one who faces the consequences. We do a careful weighing process. I think, for me, when they’re making the decision, I want them to be fully informed of the pros and cons. We sit down and discuss how the jurors will view this evidence versus that evidence. We vet everything thoroughly and tell the client what they need to know so they can make an educated decision. Based on our combined 40 years of experience, we’ll give an opinion on what we think will happen at trial.

Sometimes, though, you have to set things for trial. You have to go to trial just to keep the system honest. And sometimes, we don’t get those offers, either. We have to go to trial.

No doubt. I think the cases you’re referring to are the ones where our backs were against the wall. We didn’t have an appropriate way to resolve the case. Either the judge wasn’t willing to offer a fair sentence, or the prosecutor was convinced that the client deserved nothing less than the maximum sentence. So, when you’re backed into a corner, you get creative and try the case. And sometimes, in the middle of the trial, you realize you were wrong about your assumptions—you were wrong in how you viewed the evidence. You find a way to present your client’s narrative and the story to the jury in a way that makes them feel, “You know what? The government failed to prove this case beyond a reasonable doubt. I have reasonable doubt about this person’s guilt.”

And that reminds me exactly of that case I had in San Luis Obispo, where the client came to me three times asking me to take the case. Each time, I told her no, because of the risks and the evidence. Finally, she convinced me to go forward with the trial. We ended up getting a not guilty verdict because significant evidence developed during the cross-examination of the police witnesses and some of the eyewitnesses pointed toward exoneration. You don’t always know how the case will develop until you do the trial, but sometimes the risks are so high it’s hard to explain that to people. It’s truly unique when someone’s willing to risk it all. We saw that recently in Selina’s case, but there are a lot of different options.

We didn’t used to have the options that we have today. I’m pretty sure you know what I’m talking about, with all the diversion programs, mental health diversion, treatment programs. A decade ago, we didn’t have those things.

So, Roland and I came up in a system that didn’t offer lesser alternatives to criminal jury trials the way the system does today. Today, for example, a person who suffers from mental illness, drug addiction, is a veteran, or qualifies for a number of other programs—like diversion for first offenders—may get an opportunity to participate in a treatment-based program. In exchange, they get a dismissal of their case. In the system you and I grew up in, we could negotiate a deal or perhaps seek a reduction, but at some point, you ran out of runway to settle the case, and the only other option was trial. I think that helped us develop our skills as trial lawyers, but it didn’t allow us to present clients with lower-risk alternatives the way we do today.

I mean, we were on the ground floor of mental health courts, veteran treatment courts, and we’ve seen the evolution of drug courts—moving from a very punitive approach, where every drug offense was treated as a felony, to a much gentler approach. Now, we realize that most drug offenses shouldn’t be felonies unless people are selling, distributing large amounts, or have a prior record that mandates a felony conviction.

And so we’ve seen treatment take over, and I think it’s done a tremendous job of reducing our prison population. The state was mandated to reduce the prison population because they were busting at the seams. The new approach is treatment programs. What I think you’ve done a good job of, and our entire team has done, is finding the right program for the client when they come into the office. This way, they’re treated appropriately and humanely, and everything gets taken care of.

I think, on a more global level, this evolution in our state’s criminal justice system has also reduced the risk of an innocent person getting convicted of something they didn’t do. Now, there are lesser alternatives to the trial process, which is basically an all-or-nothing situation. So, a person charged with a crime they didn’t commit might choose to pursue a treatment-based approach that benefits them, or they might qualify for another program, like one for military veterans, and get a dismissal of their case without ever having to plead guilty or no contest. Now, only those who truly have no other option, or those who truly want to assert their right to a jury trial and prove their innocence, go to trial.

I think you’re right. A lot of these marginal cases that would have gone to trial in the past are now involved in treatment programs. It’s much easier to recommend a treatment program to a client knowing they’ll benefit no matter what—because even if they weren’t involved in something like beating their wife, the treatment still helps. On the flip side, the cases that do go to trial have become increasingly serious. We’ve seen almost every case that goes to trial now result in people looking at 20 or 30 years in prison, which jurors don’t know about because they aren’t allowed to be told the potential punishment. The sentences can be decades long, which brings me to a related question.

Roland, when should a lawyer want to know everything about what the client did? Or, put differently, when should a client tell their lawyer the truth about what happened? If we don’t know the full picture, if we don’t realize the depth of someone’s involvement, we may not advise them correctly regarding a plea bargain. What’s your take on that? I know there are competing schools of thought. So, let’s put it on the table—what are the two schools of thought?

Well, I think there are actually three schools of thought, but some attorneys say, “I don’t want to know whether the client is innocent or guilty.” They don’t want to let it affect their thinking. If you know someone’s guilty, some attorneys may not put in as much effort. They might start trying to make a deal from day one. On the other hand, I believe you and I have the same opinion—we could care less. We just want to know the facts. I want to know what happened because if I don’t know every little detail, when I walk into the courtroom, the district attorney might know that detail and use it to punk me. I don’t like getting punked. I want to be on the offensive in court. So, I tell everyone, details are important. I’m going to put up the strongest defense I can, whether someone is innocent or guilty. I’ll put 100% into it. But a lot of people don’t want to know those details because they don’t want the pressure of doing that.

So you’ve presented one side of it. The second part is that lawyers also have ethical obligations, and some clients are aware of that. For example, if a client tells you a fact, and you believe it, you’re not allowed to suborn perjury. You can’t let your client testify to the opposite of what you know to be true. So some clients may fear that if they tell their lawyer the truth, their lawyer won’t be able to evolve their story into something that helps their case. What do you think about that?

I think that’s a valid concern some clients have, but I still want to know the facts, and I’ll figure out how to make it work. We’re not here to create a story; we’re here to make the government prove their case and present the best defense we can. And when you know that your client has done something wrong, it also gives you a deeper understanding of how they got involved in the situation and what opportunities you have to address the behavior that led them to that point. Often, we end up with far better results—both legally and personally—for the client, as opposed to fabricating a story or defense. That only compounds the person’s transgression and doesn’t help them turn over a new chapter in their life. I just don’t think that’s the right thing to do. It’s also illegal, but it’s just not the right thing to do. It’s not good defense.

I also think that when we know everything—even if they’ve told us things they did wrong—it gives us a certain freedom in the courtroom. It gives us the freedom to argue and fight with everything we’ve got. We can come with the best possible result. But quite often, people admit to doing something, yet they’re charged with something much worse. That’s actually the majority of the time, and the government’s stuck on a different charge. What we’re looking at is getting the government to realize, “Yes, this person did something, but it’s not what you say they did.”

And I think that’s why I agree with you, Roland. Honesty with your attorney is very important because even if you’re admitting to wrongdoing, it could actually be a great defense. You might be admitting to something the government can no longer charge you with, or something they don’t want to charge you with because it could allow the jury to acquit you on a more serious charge and convict you on a much lesser one.

I’ve had a murder case, for example, where my client was clearly an accessory after the fact—helping the actual participants in the murder get away with it. The government could have easily charged my client as an accessory, obtained a conviction, and sent them to prison. But the government didn’t want that; they got greedy and wanted a murder conviction. As a result, they lost the entire case at trial, and that’s what the jury found, too. So, I think honesty is good for the client, and it’s also good for the case.

There are obviously some scenarios where you might be stuck with a client telling you, “Yes, I shot this person dead because I hated them,” and at that point, you can’t put the client on the stand to testify they were in Timbuktu when it happened. That’s true. You just deal with it within the framework the legal system allows. There are other ways to argue and manage the case without suborning false testimony.

You mentioned there are three competing thoughts, so one school of thought is that the client should always tell the attorney the truth so the attorney can be best prepared. Another school of thought is that the lawyer doesn’t want to know anything because it could taint their objectivity. So what’s the third one?

The third school of thought is that some attorneys want to shape the narrative before talking to their client. They look at the crime, read the police reports, and try to come up with a defense based on that. Then they shape what their clients tell them to fit that narrative. But in those cases, I think they’re only deluding themselves.

Roland, what do you think are the factors that any person—especially an innocent person—should consider when presented with a plea bargain?

Well, anytime someone is presented with a plea bargain, they need to start by looking inward. Whether we think they’re guilty or innocent, they’re the only ones who truly know the truth. So I tell people, “You need to look inside yourself, assess your own moral compass, and see where you’re at.” Then we weigh the evidence. You have to evaluate the offer: Is it a good one? Is it a fair resolution?

Because usually, the initial offer from the district attorney isn’t the final one. Sometimes it is, but not always. We have to say, “Historically, in these types of cases, this is where they usually resolve. You’re doing better than that because of these factors.” We present the factors that helped us get a better outcome, such as early counseling, marriage therapy, or drug treatment. All that prep work helps us in negotiations.

Then, it’s a matter of realistically weighing the risk. If you’re offered one year and you go to trial and lose, you might end up with 17 years. That’s not a good risk. But if someone’s looking at five years, and the maximum they could get at trial is six years, then it’s worth going to trial. We call that a free trial because there’s no real risk. In those cases, we often beat the offer. The district attorneys, for whatever reason, don’t know what to do in those situations.

Let me introduce a related topic that people outside our industry probably don’t know about—and it’s illegal, but it happens all the time. Have you ever heard of “trial tax”?

Trial tax is when, before trial, we present facts to the judge and talk to them about the case. The judge gives us a sense of the possible outcome. For example, if the defendant pleads guilty to two counts of armed robbery, the judge might say they’ll get six years in state prison. Then, we go to trial, the defendant loses, and the judge gives them 12 years. We’re left asking, “Where did that come from, Your Honor?” The judge might say, “Well, they testified on the stand, and I didn’t believe their testimony.” That’s their reason for giving a longer sentence. In reality, the judge is sending a message to everyone: Don’t bring these kinds of cases to my courtroom.

Unfortunately, this happens a lot because the system is not designed to handle everyone charged with a crime going to trial. There aren’t enough resources—no enough courtrooms or personnel. Statistically, 90 to 95% of all criminal cases will settle, or have to settle.

In places with well-funded public defender offices, they play an incredibly important role. And, as you and I know from our public defender backgrounds, a good public defender can make a huge difference in a case. However, if a public defender tried to set the majority of their cases for trial, the system would collapse. There simply wouldn’t be enough time or people to process the cases.

I’ve seen this firsthand. In some cases, when I’ve tried to go to trial, the courts get very punitive. The system can be designed to punish those who take cases to trial and lose, just to send a message to others. It’s a way to deter people from going to trial by saying, If you mess with the system, and you lose, you’re going to get a much worse sentence. It’s a tragedy and a miscarriage of justice, but unfortunately, it happens all the time in virtually every jurisdiction in the state.

Over the years, I do think there’s been a change in the trial tax. It used to be that almost every judge was a former district attorney, and what they considered a “reasonable offer” was often far from reasonable. I still remember one of my favorite judges—whenever we discussed a case, he would give me this huge smile and say, “It’s time, Mr. Pernick.” What he meant was, “It’s time for your client to go to prison.” This judge was excellent when it came to giving defendants a real chance at trial. He ruled fairly, allowed us to present our case, and gave us a real opportunity to prove our client’s innocence. But if you lost, you were going to get a heavy sentence.

We still know which judges are like that today, and I take that into account when I talk to my clients. I tell them, Look, this judge is great for giving us a fair trial, but if we lose, expect a big sentence. On the other hand, there are judges who may not be as great in trial, but they’re lighter when it comes to sentencing.

Actually, there are more female judges now than male judges, which is a good thing. I believe increasing diversity in the judiciary helps to balance out some of the unfairness we see in the system. More diverse backgrounds and experiences lead to more equality, and in some cases, it can soften the impact of a guilty verdict. But not always.

We came up in a very conservative jurisdiction in the Central Valley, so the experiences we have now in places like Santa Clara County or along the coast are vastly different from what we saw back then. Still, we learned a lot of valuable lessons early on.