If you are ACTUALLY guilty of the crime charged, what can a private defense attorney do for you? A lot more than you likely think. After practicing law for more than a decade, I have come to realize something critical about the law as expressed in our court system: It isn’t a system built around the quest for truth, it is a system built around the assignment of blame.
The quest for truth is part of the mythology of the law, the belief-system that is supported with phrases of terrific ‘truthiness’ like ‘presumed innocent’ and ‘proof beyond a reasonable doubt’ and ‘the truth, the whole truth, and nothing but the truth, so help you God.’ Prosecutors are schooled in these myths and they are enshrined in documents like the National District Attorney Association’s ‘National Prosecution Standards’. In law school it is treated as an article of faith that justice will result from the sincere invocation of these myths and beliefs. Reality is far different. In the real world of charges and cases, obtaining justice requires that a story be crafted and presented that recognizes that the myths of our legal system don’t simply become realized through the invocation of the words. Instead, the bald facts of a case need to be squared with the motivations that caused those facts to occur. The consequences of those facts need to be carefully considered by the Defense because, as countless cases have shown me, the Prosecution does not consider all the consequences that flow from their charges.
A quick example: a woman flees Afghanistan’s gruesome Taliban regime in 2000, before 9/11 and the American political recognition of the horrible situation in that nation. When she arrives in the USA, she doesn’t qualify for asylum but is convinced she would be killed if she returned. As a result, she breaks the law to save her life and becomes an undocumented worker in this country. After 9/11, the political winds change and she is given legal status in the United States. The facts of her case are unchanged but their meaning is recast in light of our nation’s new orientation against the Taliban. Her life is still hard and her legal status merely allows her to strive with other legal workers to make ends meet. The recession of 2008 begins (and hasn’t ended, as far as I can tell from the lives of working people) and her living situation becomes absolutely desperate. In a scene that could have been cut from Les Miserables, she resorts to stealing food from a store to feed her infirm parents, intending fully to pay for the food in two days when she is paid for her part-time minimum wage job. She couldn’t receive food stamps as a result of her immigration situation and she had no savings or other resources to rely upon here in the United States. She is caught, arrested and admits her wrongdoing immediately.
The District Attorney charges her with petty theft, a minor crime that would have no major impact on the life of a citizen aside from paying fines, fees, and needing to comply with the supervision of a probation officer for some span of years. But she is not a citizen. She is an immigrant and immigrants are subject to a special set of rules, rules whose violation can result in the immigrant being removed forcibly from the United States, returned to their country of origin, and incarcerated while the immigration court decides if removal is warranted. In her case, such incarceration would result in the absolute destruction of her parent’s lives since she is the sole provider for them here in the United States.
But the District Attorney isn’t concerned with the ‘collateral consequences’ of a conviction for petty theft. The criminal justice system considers immigration consequences to be outside their purview and not their concern. Judges also feel powerless to act since their ability to enter orders providing guidance to the immigration court was specifically taken away by Congress in an earlier age of draconian ‘reform’ of the immigration law. The Supreme Court of the USA recently attacked this view but no Judge in Ventura County has yet vacated a conviction in recognition of the Supreme Court’s directive. We have asked, several times, to no avail.
What then is to be done?
With a skilled defense attorney, the situation can be shaped BEFORE the conviction is entered. By focusing on the intent and ability to repay for the theft, we can arrange a civil compromise, a reduced charge that will not result in removability, and potentially show at jury trial that the facts don’t support a conviction of petty theft. These outcomes are not guaranteed, in fact, they are often very difficult to obtain. Our society has the general beliefs that those charged with crimes are guilty, deserve to be punished, and that punishments are too lax to be effective at deterring criminal behavior. Overcoming those beliefs for individual clients requires the skilled attention of a defense attorney to insure that the whole person is considered by the court. Only then can justice actually be obtained through our legal system.