Did the defendant do it? Lawyer may not know

THE BALTIMORE SUN

The accused and his defender sat side by side, exchanging confidences in a hushed Los Angeles courtroom. At times, lawyer Robert L. Shapiro instructed his latest celebrity client, an alternately somber and stone-faced O. J. Simpson, as prosecutors detailed the crime for which the football Hall-of-Famer is charged. Occasionally, the lawyer comforted him.

Surely, the lawyer knows the answer to the question preoccupying most Americans: Did Mr. Simpson kill his former wife, Nicole Brown Simpson, and her friend Ronald L. Goldman?

That's not necessarily so, say criminal defense lawyers and legal experts. Not every attorney who is defending a defendant accused of bank robbery, rape or murder wants to know whether his client did it. Some lawyers, however, say they need to know everything they can about a crime and a client's involvement in it to put on the best defense.

"You have to start with the premise -- and people often forget this -- it's the state's obligation to prove their case," said William I. Westin, a professor at the University of Baltimore School of Law. "Whether or not O. J. told his lawyer whether he did something or not is irrelevant. It's up to the state to charge him and prove their case."

Once a person has been charged with a crime, the lawyer hired to defend him begins his own investigation of the crime.

The pursuit of a defense is peculiar to the defendant, the crime and the lawyer.

Baltimore attorney Gerard P. Martin said he asks his clients to tell him "everything that happened."

"If they choose to tell me if they did it -- and I encourage them to tell me if they did it -- then we deal with the facts with the way they are," said Mr. Martin, who sits on the board of the Maryland Criminal Defense Attorneys Association. "We put the state to their proof. You fight the case on other fronts [than an alibi]. It's still the state's responsibility to prove the case beyond a reasonable doubt."

But, he noted, "A lot of lawyers give this speech, 'I want you to tell me everything but before you do . . . if you tell me that you did it, you will never be able to take the stand with me as your lawyer and deny it."

John Wesley Hall Jr., a Little Rock, Ark., attorney who sits on the board of the National Association of Criminal Defense Lawyers, said if a client isn't truthful about aspects of a case, the untruths may lay a trap for his lawyer.

"Sometimes whether the client did it or not is something the state can't prove," said Mr. Hall, author of "Professional Responsibility for the Criminal Lawyer."

"In those cases, I don't care to know [if he did it]. . . . But if it's not disputed that your client was there or it's going to be shown your client was there, then the question is why. Then it behooves you to know.

"It's better to know the truth and deal with it because sometimes the truth can still help you. But a cock-and-bull story that makes the jury smirk at you when you're testifying does you no damn good at all."

In the initial aspects of a case, a lawyer may not need to know whether his client committed the crime. As in the Simpson case, the defense lawyer may be fighting other battles, such as trying to suppress incriminating evidence.

Preferring not to know

"You don't want to ever as a defense attorney burn your bridges," said Michael Pasano, a Miami lawyer who sits on an American Bar Association panel that deals with defense issues.

"You start narrowing your options once your client starts telling you what they did."

Some criminal defense lawyers would prefer not to know whether their client committed a crime because they feel it would impede their ability to defend him or her.

"You want to avoid the trap of him telling you that he's guilty," said Anton J. Keating, a Baltimore defense attorney who, in 25 years practicing law, has represented as many as 75 murder defendants.

"Because if he does that, it limits your defenses. It limits what you can do, and emotionally you cannot fight for him in the same way . . . . You want to be able to maintain the myth [that he didn't commit the crime] for your own well-being.

Whether a client tells his lawyer, or doesn't, the evidence in a case and the lawyer's code of professional conduct prescribe how a defense lawyer proceeds.

"You can't put on an alibi if you know it's false," said George Castelle, a public defender in West Virginia who, in his 15 years as a lawyer, has represented defendants accused of jaywalking, sexual offenses and murder.

"If the client says, 'I was some where else. I didn't do it.' The lawyer can certainly present whatever evidence in support of that."

But Mr. Castelle said, "If the client says, 'I was there, I did it but I can manufacture this great alibi,' the lawyer can't cooperate with that." A lawyer facing that situation would have to withdraw from the case under the rules of professional conduct, he said.

Read the riot act

And yet, Mr. Hall, the Arkansas lawyer, said an attorney who too quickly abandons a client who insists on pursuing a false alibi only assists in perpetuating the perjury.

"The best bet is, read the client the riot act and say you're facing life if you're convicted of this crime but you got a shot at second-degree [murder] or manslaughter or maybe acquittal. . . . If you get up there and insult a jury, you're just asking for a conviction."

When police first focused on Mr. Simpson as a suspect in the slaying of his former wife and her friend, Mr. Goldman, the sportscaster was represented by Howard L. Weitzman, another Los Angeles lawyer with his own stellar stable of celebrity clients. Within two days of the killings, however, Mr. Weitzman withdrew from the case, citing his personal relationship with Mr. Simpson and other professional commitments.

"I can no longer give O. J. the attention he both deserves and needs," he said in a statement.

Several lawyers interviewed discounted the possibility that Mr. Weitzman had dropped out of the case because of something Mr. Simpson told him.

"It may be he knows him too well or he knows the ex-wife," said Mr. Hall, the Arkansas lawyer. "I wouldn't want to do it either, if I knew the victim."

If a client confesses to his lawyer that he committed a crime but is never charged with the offense, the lawyer cannot divulge that information because he is bound by the attorney-client relationship to secure that confidence unless the client permits disclosure.

Under the code of ethics, a lawyer may reveal a confidence -- although the ethics code does not require it -- to prevent a client from committing a future crime, whether it's perjury or murder.

And yet that same code concedes that "it is very difficult to know when such a heinous purpose will actually be carried out for the client may have a change of mind."

Tactical vs. ethical purposes

"There are lawyers who say they avoid finding out whether their client is guilty. Generally that is not really true," said Monroe Freedman, a professor of legal ethics at Hofstra University. "They find out enough for tactical purposes. They just don't find out enough for ethical purposes."

As the rules have been interpreted by the ABA and courts, a lawyer would have to have "actual knowledge" of the perjury, and that means that "the client has to say to the lawyer, 'I'm going to take the stand and lie.' "

"The short of it is that the lawyer almost never has an obligation to reveal client perjury, because the lawyer almost virtually never knows under the ethical rules," he said.

In watching the broadcasts of the Simpson preliminary hearing, Mr. Hall said that a statement by a former prosecutor commenting on the case for a TV network "irked" him. The commentator stated that the "prosecution deals with the truth" while the defense lawyer doesn't do anything such thing, Mr. Hall said, paraphrasing the statement.

That notion, the lawyer said, only fuels the public's misconception about the system.

Perceptions of truth

"The prosecutors don't deal with the truth either," said Mr. Hall, a lawyer for 21 years.

"They deal with what they think it is. Then they try to make the case fit.

"The Simpson case is a classic fit. The police were running up and down the street [between Mr. Simpson's house and the crime scene] looking for evidence.

"The point is they are not looking for the truth. They are looking for evidence that O. J. committed the crime. . . . We figure this is the guy, and everything that doesn't point toward him we ignore or consider to be irrelevant and everything that could point toward him, we'll just bend it until it fits."

Mr. Westin, the ethics professor at the University of Baltimore Law School, cautioned that the public needs to let the criminal justice system work in the Simpson case.

"Whatever he has done and whatever he has told Shapiro, in the eyes of the law he has done nothing until a jury says he did it," said Mr. Westin.

"If someone doesn't uphold these principles, how are we going to have a legal system?"

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