How Can You Defend Those People

By David RaybinDavid Raybin on Channel News 5

“How can you defend those people?” This is a question every criminal defense attorney  has heard. I respond by asking  what should I do  if your son or daughter is one of “those people?” Folks have a hard time with that reply and the conversation dissolves into notions of the guilty and the not so guilty.

The fact is that guilt or innocence are legal conclusions we should consider only at the end of the trial and not when a person is first arrested.

A better question is why  are so many folks freed years later when new evidence surfaces that somebody else committed the crime. We are happy that  we have DNA tests. But how did the poor devil – with all those “rights” –get convicted in the first place if he or she was actually innocent?

The root causes of  most erroneous convictions are  not misguided prosecutors or police. Rather the problem is almost always a lawyer who lacked the tools to properly defend the case.

A real defense requires a significant legal arsenal of attorneys, investigators, and expert witnesses. Go ask the Duke athletes who were accused of a rape that never happened. Speak to the two respected Nashville real estate lawyers who were recently acquitted of a conspiracy that never existed. The defense in  these cases was enormously  expensive.  Would the results have been the same if the accused were indigent? You know the answer to that question.

A recent study by the   Spangenberg Group for the Tennessee Justice Project demonstrates that, on average, publicly funded  defense receives less than half the resources allocated to the prosecution in the same case. That is an important qualification since not every defendant is poor and thus those cases were excluded from the analysis so that it was an apples to apples comparison.

Nobody suggests decreasing the prosecutor’s budget to even the scales of justice. Rather, we should commit sufficient resources so both sides are on a level playing field.  This is not a question of theoretical fairness. In my view, it is an issue of reducing an unacceptable risk of  convicting the innocent.

The public defenders do a heroic job with modest resources. The problem is even more profound for those who can barely afford both a  bond and  an attorney but lack the additional money to hire investigators and experts. These semi-indigents should have access to limited public assistance after making significant financial contributions to their own case. Perhaps “matching funds” might be made available  to provide the tools for a real defense.

If you are a crime victim – no matter your station in life — the government  prosecutes the offender to vindicate your rights as well as to protect society. Society has an equal obligation to be certain  that  those poor devils who are imprisoned are incarcerated only  because they are devils and not because they are poor. Our system requires no more and justice demands no less.

ABOUT David Raybin
David Raybin

David Raybin is a partner at Raybin & Weissman and he heads up the criminal defense section of the firm. With more than 35 years of experience, David has been named the Best Criminal Lawyer in Nashville by Best Lawyers in America, and listed among the Best Criminal Lawyers in the state by Tennessee Business magazine.

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