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What's legal in court is often a crime

By Michael R. Shannon
web posted July 4, 2011

A chill wind is wafting through the criminal defense bar. It appears the federal government has decided there should be consequences for some forms of obstruction of justice.

Charles F. Daum, described by the Washington Post as "A well–regarded defense lawyer (who) often works gritty trials -- and gets results" is charged with conspiracy and witness tampering by federal prosecutors as a result of his strategy for a client in a drug case.

According to the indictment, Daum's defense of his client was based on lies. You may ask, how does this differ from any other defense in a criminal trial? In Daum's case it appears he escalated the usual and customary by going into the evidence manufacturing business.

The case centered around cocaine, cash and boots discovered during a search of a DC apartment. Counselor Daum allegedly (innocent–until–proven–guilty) persuaded his client's girlfriend and brother to take an active role in the defense by buying identical boots and taking photographs of the brother wearing the boots and then faking photos of people cutting cocaine in the apartment. Meanwhile, Daum forged an apartment lease "proving" the client lived in Maryland.

A brief outline of this defense is: not his boots, not his cocaine and besides he didn't live there.

But you say no one would turn on his brother just to stay out of jail! Without exploring the pathology and family dynamics of the drug culture -- I can safely say that the drug dealer's brother would have been in the clear no matter how fetching he looks in the boots.

Had this baseless defense been successful, the brother would not have been arrested on drug charges after the trial, because the police know the drugs aren't his! So both brothers would have been in the clear and lawyer Daum would have had a potential profit center should the drug dealer continue in his chosen profession.

So, the operating principle behind the decision to indict appears to be don't manufacture tangible evidence. Defense lawyers can essentially obstruct justice by inventing perpetrators, blaming it on a black guy, creating fictitious conspiracies, accusing the ex–husband, tainting the witnesses, complaining about keeping–the–black–man–down, cry police brutality, point to the number of "brothers" in jail or otherwise attempt to confuse and mislead the jury, but as long as the untruths remain verbal everything is copacetic.

But once lawyers start to undermine the sanctity of the apartment lease it's time for serious repercussions.

We will now take a brief timeout to address the reflexive objection, "But what if he really is innocent?" Let me go on record as saying I'm all for defense lawyers defending the innocent and convincing a jury to render a verdict of not guilty. I'm all for a vigorous defense of an accused who's guilt is doubtful and who's case contains reasonable doubt. Most criminal cases though are not like that.

Television and John Grisham have distorted our perceptions of the justice system. In 2007 federal juries returned 72,865 guilty verdicts, because the vast majority of individuals behind the defense table at a criminal trial are guilty, yet even the guilty deserve a defense.

I'm all for a defense lawyer negotiating a plea bargain, highlighting mitigating circumstances and making the prosecution follow rules and the law so the defendant receives a fair trial.

I am not in favor of letting O.J. off so he can hunt for the real killers.

The fact is most criminal defense lawyers don't want to know if their client is guilty, so they never ask. I can only assume this is because those lawyers still have a small, vestigial conscience that functions much like the appendix does for the rest of us: we know it's there and we don't want to do anything to inflame it.

Knowing the client was guilty as charged might inhibit their performance in front of the jury where the goal is not to see justice done, but rather to see their client walk free. And it only takes one confused, suspicious, naive, ignorant or gullible juror to prevent a unanimous guilty verdict and cause a hung jury.

(Isn't it curious that a hung jury is acceptable in elite circles, but a hung murderer is beyond the pale?)

Read trial coverage and see for yourself. Defense lawyers' invented and hypothetical scenarios for how a crime "might have happened" are perfectly acceptable in the legal community regardless of the obstruction to justice the resulting verdicts create.

And in my view that failure of ethics and morality is just as big a crime as a rush fashion shoot with a pair of new boots. ESR

Michael R. Shannon is a public relations, advertising and political consultant with experience around the globe. He is also a popular speaker and can be reached at michael–shannon@comcast.net.

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