CHALLENGE EVERYTHING

In the television show House, House- the brilliant but cantankerous diagnostician doctor continually tells the doctors he is training "everyone lies".

And so they do. 

The challenge I face as a criminal defense attorney in every case I accept is not only to determine who is lying, but if everyone is lying, what is the truth? 

The fact that everyone lies was brought home this past week with the revelation that the vaunted FBI crime lab lied on almost every hair analysis case they handled for the past thirty years. In the wake of the scandal are the innocent men and women who were wrongfully incarcerated by junk science. In the last case I read about, the FBI matched a hair to a defendant, testifying that the odds of a match were one in ten million. The testimony turned out to be false.  The hair sample allegedly matched to the defendant was from a dog. About the best you could say about that is "right planet, wrong species."

The simple lesson for myself and my fellow criminal practitioners is to never accept any of the evidence the prosecution puts forward in any case without first investigating and challenging the evidence. Many times, for strategic reasons, I will not care if scientific evidence links a client to a scene. 

Say I am representing a woman who killed her domestic partner and wants me to raise the battered-spouse syndrome in connection with self defense. A fingerprint that puts the client at the scene is probably meaningless in terms of the overall defense. But a good criminal defense attorney examines all the evidence. Even though the client may not deny being at the scene, the ability to show that the prosecution relied on faulty -if not terribly relevant- evidence- is an opportunity many attorneys overlook. So the lesson from this week's FBI hair analysis scandal is to challenge everything. Or as an old, grizzled criminal defense attorney from Brooklyn once told me: "The only thing I waive (wave) in court is the American flag." 

When Lenny Fusfield told me that, I was a young and impressionable law student. It was one of the first lessons in courtroom strategy that I was ever given, and I can count the times I have deviated from that strategy, and most of the time it has been to my regret. 

When House said "everyone lies" he was talking mostly about his patients. In that regard, clients will often shade their version of events, many times to avoid upsetting me.  Clients think that if they tell me exactly what happened I won't want to represent them because of their criminal conduct. This is entirely natural.

But to quote Hyman Roth from the Godfather II "This is the business we have chosen."  As I often tell clients,  "If I couldn't represent people charged with what you have been charged with, I would have stayed being a prosecutor."

When my client's deny involvement in a crime, I want to believe them.  But I do so at my, and more importantly, their own peril.  And yet, as you will see below, I don't believe them at my own peril as well.

The more I know about the actual facts, the better I can help them. 
The more I know about what occurred, the better I am able to determine when police are engaging in, what I call TEJTM investigation: "The ends justify the means". 

I very often see police prevaricate their actions in an investigation because they are "sure" they have the right guy, and they'll be damned if they will let them get off because of something inconvenient like the truth. The best police investigators don't do this, and they are in fact the hardest for me to cross examine, because the truth is the truth and jurors will instinctively trust a police officer who is telling the truth, even if it is to the detriment in the case. 

The worst and perhaps most tragic example of this was my representation of a client in the re-trial of a tragic murder  that occurred in 1989. The client gave a confession, and then spent two decades saying that the police threatened his family and didn't honor his request for an attorney during the interrogation. The client was originally sentenced to death and the conviction was reversed for other reasons. During the second trial the tape of the interrogation surfaced after 20 years, and sure enough the client is on tape asking for an attorney and the police respond by threatening him and his family.  The police, having previously denied at deposition and the first trial what was now clearly on tape, were stuck with their former testimony. It did not go well for them at trial.

Everyone lies.  Except every now and then a client that has every reason to lie, and whom no one believes, tells the truth. And there is the ultimate challenge for criminal defense attorneys: to challenge the police when all the evidence seems in their favor and to believe the client when no one else does. 

It's a challenge. 

PLR.