What a defense attorney does

Frequent defense attorney question: "How can you defend someone like that?"

Very often, when I met strangers, at events, celebrations or similar occasions, someone asked the following question - when it came to the discussion of how those present earn their living - «How can you defend someone like that when you know that it was him? " And: "How do you actually reconcile that with your conscience?"

Usually the question goes hand in hand with the general statement: "Well, I couldn't do that." And there are regular case studies from the field of sexual criminal law, in particular child pornography and capital criminal law, or the current press reports on “spectacular” criminal proceedings are used to discuss the ethical moral stance of criminal defense lawyers.

This topic has mostly been dealt with in the literature by and about lawyers under the headings “rule of law” and “presumption of innocence”. I would therefore like to undertake a somewhat unorthodox attempt to convey to you, all of you who are already or will soon be "colleagues", my approach to an answer to these perfectly understandable questions and thus perhaps to arouse your interest in defense in criminal matters:

Several years ago, at a time when I was already working exclusively as a criminal defense lawyer, one evening I went to a birthday drink from a school friend of a colleague. The colleague's school friend was meanwhile a judge and so among the guests at the small party in an Irish pub in the suburbs there were of course some judges with whom I spoke during the evening.

"Outed" as defense attorney

I talked for a while with a young assessor who didn't know me better and who - but what I knew - was an assessor at the jury, and - surprisingly - she too suddenly asked me how I could defend someone from whom I was know it was him. It is true that a short time after having "outed" yourself to friends and acquaintances as a criminal defense attorney, you are used to people who are not closely involved with the judiciary asking these and similar questions. Friends and acquaintances who work as engineers, waiters, doctors or roofers may also ask themselves questions like this when they are confronted with the profession of criminal defense lawyer.

But that a judge, i.e. a lawyer, who has presumably passed two above-average state examinations, and whose tasks include deciding as an independent member of a collegial court on the admissibility of filing a public suit before a large criminal chamber - as a jury court - and later Convicting a defendant or acquittal of the charges made by the prosecution, asking a criminal defense attorney such a question, amazed me then and still amazes me today.

Who's the bastard?

I still remember that I first tried to question what she understood by knowing that a client had committed an act of which he was accused. After all, the judicial investigation serves to clarify the question of whether an accused person has committed the accused (Section 155 of the Code of Criminal Procedure). "No, no," was objected. That is not what is meant. Today I ask myself whether what was not meant, namely the clarification of the question of guilt in a main legal proceeding legal process based on legally established and fully valid evidence, is a kind of glass bead game in the eyes of my counterpart at the time. In reality, prosecutors and judges may know who the bastard is as soon as they put their hands on the folder because of their professional experience and their routine handling of many cases. "No, no," I heard and the self-confident young judge explained to me that she meant those situations in which it was not only clear from the file that it was the client, but that the client had also said beforehand, that he committed the act.

Yes, one would like to object immediately, red files, investigation files of the public prosecutor's office, which are sent to the court appointed to decide on the opening of the main proceedings after the public prosecutor's investigation has been concluded, always make it clear immediately who the perpetrator was, who will end up being charged. The name of the accused is already on the folder as the name of the accused by means of a small sticker and the alleged evidence of guilt runs like a red thread through the files, at the end of which there is a coherent-sounding indictment. But the judge was now concerned with those cases in which her understanding of the willingness to defend someone is apparently limited, in which the client has told his defense attorney that he had actually committed the crime he was accused of.

Well. Admittedly. There are also such cases. It is astonishing, however, that a professional judge expresses an attitude that is so alien to the rule of law with a differentiation that criminal defense in the case of “real perpetrators”, defendants who, from the point of view of all bystanders, are in some way questionable. "How can you ...?"

Not a few cases in which clients explain to their defense attorney remain unexplored - be it that they want to take the blame for a close relative or someone who has open parole, be it that they are in Be pressured in any way because they belong to or are related to a clique, group of friends, or an organization that has such expectations of them - that it was them who committed the accused or accused. Does the defense attorney know - one might argue - that the client is guilty in such cases, no matter how persistently he claims that he committed the crime?

Is criminal defense sometimes in doubt?

So if it is supposedly clear that a defendant will be shown to have committed a criminal offense in a trial to the conviction of the trial court, is defense in such cases doubtful? Isn't it all the more necessary then, or based on Gerhard Strate: Isn't it precisely in such a situation that it is only the defender who gives trust where everyone refuses to do so? Compassion unfolds where feelings have died; Sows doubt where no one has it; and plant hope where it has long since vanished?

To explain all my approaches, which is why I am convinced that one must also critically view the results of investigations, no matter how clear they appear, because, for example, neutral witnesses who claim that they had seen a certain process in detail, on closer examination, as crack witnesses point out who have only heard what has undisputedly happened, but let missing perceptions become reality from experiences and plausible ideas, or because witnesses can succumb to so-called false memories, my counterpart could not dissuade their opinion that there are cases in to whom nothing can be defended. She then briefly came up with the fact that in such cases - which were quite clear - as a judge she would not understand what the whole thing was about, which some defense lawyers then put on in the main hearing. Apparently what was meant were requests for evidence, statements by defense counsel, complaints or the submission of requests for rejection.

I no longer fully remember the course of this conversation, but I will never forget how the conversation ended. After it was clear to me that I would not be able to convince this judge and member of a jury court with my argument, I objected that one could at least agree on the presumption of innocence, the presumption of innocence still applies until a defendant is finally convicted. The answer was devastating: "Well, there are already cases where I prefer two innocent people in jail to one real guilty person who is free walking around outside."

The famous Berlin criminal defense lawyer Prof. Dr. In his work "The Philosophy of Defense", published in 1930, three years before his self-chosen death, Max Alsberg coined the following sentence: "The defender's criticism seeks to inhibit the arrogant, hasty reach for the truth!"

The impotence of the accused

Anyone who - not infrequently also happens to defense lawyers in the course of their professional life - has been a suspect in criminal proceedings and has learned from their own perception of the power with which the criminal prosecution authorities and the judiciary are pursuing an initially provisional hypothesis that is in the room and how impotent the accused is faces, appreciates when an experienced and level-headed defense lawyer is at his side in such a situation. Searches, confiscation, arrest orders up to the execution of pre-trial detention: the power of the state over an accused is enormous and in not a few places in the judiciary there are people who - through whatever influences: professional cynicism that has developed over the years or simply because of the a large number of professionally experienced delinquency - have abandoned a critical and cautious approach to accusations and think they already know what is right and what is wrong.

Such people can - as the example described conversation with my conversation partner shows - unfortunately also work at switching points of the judiciary, which can destroy entire existences. Even if it is almost impossible for a criminal judge to get up in the morning and say to himself that today I am going to convict someone wrongly, there are judges who reach for the truth hastily and arrogantly and - what is the worst part of it - are convinced of it are that they have already recognized the truth and will now judge the right one.

There is therefore hardly anything more fulfilling than helping a person who has fallen into the wake of criminal proceedings and possibly even been taken into custody with a critical and unrelenting defense of the presumption of innocence. The fact that criminal defense is a task with constitutional status, without the existence of which every judgment lacks the constitutional legitimacy, is in the end almost secondary for the motivation to take up the profession of criminal defense lawyer.

This text comes from the "Beck'schen Referendarführer 2017/2018". Here you can order the trainee guide free of charge, and you can download it here.