Devan Gubler

07/02/2016
CJ 1010 Final
The Defense
Does our system place too much emphasis on defending guilty felons?
Are our tax dollars being wasted to pay defense attorneys every time a
criminal decides to commit another grievous act? Is the defense system fair
to the law abiding citizen? Where is justice in our system today?
These questions have been asked by many people. There is a broad
spectrum of answers, ideas, philosophies, beliefs and myths about these
questions. The goal of this essay is to give a brief explanation of the defense
system, look into the roles and responsibilities of defense attorneys and lead
any reader to a better understanding of, and respect for, the defense system
which we have.
Much of what the defense system is today has come through a great
battle which has unfolded over the course of centuries of injustice. George
D. Watrous who wrote a law journal for Yale University on the subject, said,
Up to 1688, prisoners in cases of treason and felony had no counsel;
throughout the eighteenth century none were allowed in cases of felony. He
then quoted A History of the Criminal Law of England, which said that a
trial in days past was, not unlike a race between the king and the prisoner,
in which the king had a long start, and the prisoner was heavily weighted.
The criminal systems of centuries past never gave the defendant a fair

chance to escape the harsh penalties or even to prove their innocence.

People who had no idea how the justice systems worked were sentenced
without even understanding what their rights or options were. Criminals
were guilty until proven innocent. One of the biggest steps to a more fair
system came with the Sixth amendment to the constitution of the United
States which was ratified on December 15, 1791. The amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
While the language is old and it can be a challenge for younger generations
to understand, it has been clarified and simplified. The Cornell University
Law School simplifies the amendment:
The Sixth Amendment guarantees the rights of criminal
defendants, including the right to a public trial without
unnecessary delay, the right to a lawyer, the right to an impartial
jury, and the right to know who your accusers are and the nature

of the charges and evidence against you. (Cornell University Law

School)
There are several reasons and purposes for the defense and defense
attorneys. It has been said that, The most important responsibility of the
criminal defense attorney is to be an advocate for her or his client. (Miller)
An advocate is simply someone who supports and gives recommendations.
In our society, there are many who dont have a clear understanding of the
legal system, usually more specifically those who are more likely to commit
and be convicted of crimes. As with most government entities, there are a
lot of policies, procedures, rules and standards that have to be followed. The
court has a lot of orderly steps and for someone who doesnt have a deep
education of the system; it would certainly be a daunting task. The advocate
or defense attorney assists defendants in these cases.
Another responsibility of the defense attorney is to ensure that what I
will call fair justice is reached. Justice and fairness are the key elements of a
trial. Justice in the court room usually takes the they get what they
deserve meaning. That is when the criminal gets their punishment. In the
dictionary, fair is defined as something that is, free from bias, dishonesty, or
injustice. (Dictionary.com) Thus we see that justice and fairness are
completely intertwined, one should not be without the other. Lenny Frieling,
a defense attorney of over 30 years said, our job is in fact similar to the job
of the prosecutors, namely, to do justice. (Frieling) Our criminal justice

system needs a prosecution and a defense to reach fair justice. Frieling gave
more insight into this idea. He said:
If my goal was to walk every client, I would fail quite often. So
would most of us. Most of my clients are guilty Although the
police sometimes fail to pay attention to the constitutions of
Colorado and of the United States, and sometimes demonstrate
an amazing ignorance of the applicable statutory laws, they are
not totally wrong much of the time. They may think that the
value of a stolen item is more than $500, making it a felony
charge, when in fact the value is in the misdemeanor range;
however, they are frequently correct in their belief that (1) the
item in question was stolen (taken by my client with the intent to
permanently deprive the owner of the property); and in their
belief that: (2) the person they arrest or summons is the person
who took the property.
Thus we see that the job of the defense is not to just acquit every criminal of
any charge, but it is to make sure that they are charged and punished fairly
according to the crimes committed. Frieling explains that the real goal is to
get, a fair result in every case. The defense investigates the crime, the
charge and other factors and when the charge has any blemishes or appears
unjust for any reason, they are the advocate fighting for good of the

defendant. The defense takes all necessary preventative measures to,

secure fair play. (Watrous)
In a Stanford Law School journal by Barbara Allen Babcock, she
discusses a variety of reasons why the defense is important. This essay will
discuss only a couple of her reasons, but it is strongly recommended to
research her journal for more information. In her section entitled, The
Political Activists Reason, she talks about inequality of oppressed minorities
in the system.
Although it might be impossible to know exactly what leads people to
commit crime, there are a few theories that give understanding. One theory
called the Social Disorganization Theory states that, deviant behavior is
more likely in communities where social institutions such as the family,
schools, and the criminal justice system fail to exert control over the
population. (Miller) There are certain places where it is more likely to turn
to criminal activity. People have no control over where they are born, so just
by being placed in a circumstance based on where you live, you can fall into
patterns of crime.
Another theory is the Strain Theory. This theory is based upon, The
assumption that crime is the result of frustration felt by individuals who
cannot reach their financial and personal goals through legitimate means.
(Miller) Again, this is based mostly upon environmental factors which lead to
crime.

Lastly, the Cultural Deviance Theory which, asserts that people adapt
to the values of the subculture to which they belong. (Miller) It is easy for a
youth in a criminal neighborhood to get caught up in the mess of crime when
most of their parents, peers and role models teach them to deviate against
the criminal justice system, to lie, steel, and cheat their way through life. Is
it fair to these people to be held to the same standard as someone who is
born into a wealthy home, given their basic needs and desires, shown
positive models and taught how to live and succeed in legitimate and moral
ways? The answer to this question is very complex. In the political activists
reasoning, the defense lawyer performs good work when he helps to
prevent the imprisonment of the poor, the outcast, and minorities in
shameful conditions. (Babcock)
Another point from Barbaras journal is, The Social Workers Reason.
This reasoning is much like that of the Political Activists. It also has to do
with disadvantaged people. It focuses on the idea that when people are
treated like people and given an advocate to fight for them, that is has
rehabilitating effects. This logic can be summed up by looking at this
phrase, the criminally accused are men and women in great need, and it is
part of ones duty to ones fellow creatures to come to their aid. (Babcock) It
is true that criminals often have very rigid backgrounds and are in need of
great assistance. It is the hope that, Because the accused comes from a
community, the beneficial effect of giving him his due will spread to his
friends and relatives, decreasing their anger and alienation. (Babcock)

Having a defense system in place and giving the disadvantaged real

representation can lead to the improvement of communities.
One of the most eye opening remarks that Barbara makes in her paper
that there is a we/they mentality when it comes to the treatment of
criminals. This comes because of the cultural differences of the upper class
who often evaluate whats going on according to news reports and other
resources that can add their own prejudices and the disadvantaged who are
often in their minds forced to become criminal to try and provide for
themselves and their families. Yes, there needs to be justice in order to
preserve the overall peace of our communities. Criminal behavior can never
be acceptable. However, she says that we are, asking the wrong question.
(Babcock) The question shouldnt ask why and how defense attorneys try to
set the murderer and the rapist free. Maybe a better question would be
dealing with how we can develop our communities to give every person an
equal chance at being financially stable and otherwise capable of creating a
fulfilling life, to help avoid turning to criminal behavior. After all it shouldnt
be a we/they ideology when we are all human.
The sixth amendment guaranteed the right to a fair trial. The way that
a fair trial is accomplished is through having both a prosecution and a
defense lawyer to fully evaluate both sides of the incident, present evidence
and ultimately reach fair justice. Is it fair that lawyers are provided to those
who were born under circumstances that lead them to being unable to pay

for a lawyer of their choice? You decide, but in order to achieve true and fair
justice it is necessary. Having a system that gives every person an equal and
fair chance at proving their innocence or reducing their charges to an
appropriate level is so important. Imagine if the guilty until proven innocent
philosophy was still in existence today and you were charged with something
you didnt do and with no understanding of the way the court works and no
money to pay for a lawyer to be your advocate. Our system is something to
be grateful for, not something to be disgusted by. However, we do need to
recognize that the criminal justice system is run by people who are not
perfect and at times may take part in bribes or dishonest behaviors that alter
the ability to achieve fair justice. Overall when the criminal justice system is
functioning correctly, which in most circumstances it does, fair justice is
attained. This is a country where justice should always be free and fair.

Works Cited
Babcock, Barbara Allen. "Defending the Guilty." 1983-1984. Cleveland State
University. Journal acessed online. 2 July 2016.
<http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?
article=2052&context=clevstlrev>.
Cornell University Law School. Sixth Amendment. n.d. 2 July 2016.
<https://www.law.cornell.edu/constitution/sixth_amendment>.
Dictionary.com. Fair. 2016. 3 July 2016. <http://www.dictionary.com/browse/fair?
s=t>.
Frieling, Lenny. "Why Do We Defend Guilty People?" May 2006. The Docket. Online
Article. 2 July 2016. <http://www.denbar.org/docket/doc_articles.cfm?
ArticleID=4598>.
Miller, Larry K. Gaines and Roger Leroy. Criminal Justice in Action: Seventh Edition.
Belmont, CA: Wadsworth Cengage Learning, 2013.
Watrous, George D. "The Moral Right to Defend the Guilty." December 1892. Yale
Law School Legal Scholarships Repository. Journal Entry online. 2 July 2016.
<http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=4975&context=fss_papers>.