Every criminal lawyer has ever had to answer the same question: “How can you defend a person if you know he or she is guilty? The answer lies in art. 24 of the Spanish Constitution, which establishes that all persons -whether innocent, guilty, or half-pensioners- have the fundamental right “to defence and the assistance of a lawyer, (…) to use the relevant means of evidence for their defence, not to testify against themselves, not to confess guilt and to the presumption of innocence”. And it is the lawyer who is responsible for ensuring that anyone subject to criminal proceedings can exercise this fundamental right.
In fact, the greatness of the rule of law consists, among other things, in knowing that when someone is convicted, it is done after a fair trial with the due guarantees of the right to a defence. No guantánamos.
Furthermore, in the more than twenty years that I have been defending all kinds of defendants in court, I have learned that dividing defendants into “innocent and guilty” is as simplistic as dividing people into “good and bad”: there is a rich grey scale, also among those who sit in the dock.
But this post does not deal with the ethical aspects of defending a guilty party, but with a practical problem that can also be posed by a lawyer: how to defend a client who, not only is guilty, but also has such strong evidence of charge that it is impossible to obtain acquittal?
Well, here is a decalogue of ten possible strategies:
First, study the statute of limitations.
The statute of limitations is always the first thing to check (whether or not the client is guilty) when assuming a new defense. Many times, due to the complexity of the investigation, the victim’s delay in denouncing, or the slowness of the court in question, the time elapsed from the commission of the crime until the procedure is directed against the guilty party exceeds the time limits of article 131 of the Criminal Code, and it will suffice for us to invoke the statute of limitations to save our client from the dreaded sentence.
Second, to ask for the nullity of the evidence of the charge.
Sometimes, the evidence that we believe devastating against our client has been obtained by illegal means or with violation of fundamental rights. As in the fight against crime not everything is valid, article 11 of the Organic Law of the Judiciary establishes that “evidence obtained, directly or indirectly, violating fundamental rights or freedoms will not be effective”.
On this type of nullity I wrote an article in El Mundo that can be consulted in this other post of the blog. That article referred to the investigation of Operation Greyhound on alleged doping in Spanish athletics, in which I intervened as a defense lawyer, and which ended up being filed when the Provincial Court of Madrid found that the wiretaps and searches were void because the Civil Guard had violated fundamental rights of the accused.
The nullity of the evidence can be requested at different moments of the process: when the summary secret is lifted, during the investigation, as a matter prior to the beginning of the oral trial, in the appeal or cassation… And one should not be discouraged if the first time one asks for it is rejected: if we really understand that there is nullity, let us reiterate it in each phase of the procedure until the end.
Third, mediation and negotiation.
Sometimes the client who has committed a crime is not yet charged, but he comes to us because he has received a burofax from the victim warning him of criminal actions.
In these cases the lawyer must use his negotiating skills and his ability to convince the client to avoid criminal proceedings. And doubly: on the one hand, to reach a fair agreement with the opposing party (that if he has really suffered a crime he has the right to be compensated) that avoids lodging a complaint, and on the other hand, to convince our client that – although pride dictates something else – a good agreement is better than the possibility of ending up in prison. Defending the client’s interests often begins with convincing the obfuscated client of what his interests really are.
It is also possible to resort to the innovative criminal mediation, of which there is information on this page of the CGPJ.
Fourth, be realistic and don’t be obsessed with an impossible acquittal.
A typical vice in beginning (and sometimes not so beginning) lawyers is to lose perspective, be overly optimistic, and convince the client that their case is won when it is not.
The lawyer must assess with serenity the case entrusted to him (the evidence of charge and discharge, applicable case law …), and if there are objective possibilities of obtaining an acquittal, leave the skin on it. But when it is objective that the sentence will be condemnatory, we cannot play double or nothing with our client’s freedom: we will have to focus on getting the sentence to be the least possible.
Some effective formulas to, at least, significantly reduce the duration of an inevitable sentence are the fifth to ninth strategies described below:
Fifth, confession and collaboration with Justice.
It can happen that our client comes to us before his accusation, because he knows that he is going to be accused soon. The client has committed a crime, the investigation is about to catch up with him, and from the data we have his conviction will be inevitable.
In that case, it may be convenient to go immediately to the Court of Guard to present a written confessing the crime. In this way, our client will be able to benefit from the attenuating confession (art. 21.4. of the Penal Code) to reduce the sentence.
But be careful: the confession must be made before the procedure is directed against our client, otherwise there will be no extenuating circumstances. In addition, the confession must be complete (if we keep data and we are discovered, goodbye extenuating) and sincere (if our client misses the truth at some essential point and is discovered, he will also lose the extenuating).
If, in addition to confessing, we provide a useful collaboration with the investigation (providing documentation, etc.), we could ensure that the confession is considered as a highly qualified attenuant, or even that a new analogical attenuant is appreciated (art. 21.7. of the Penal Code).
Sixth, reparation of the damage.
Another simple way to reduce the sentence with an extenuating circumstance is to repair the damage, that is, to compensate the victim before the trial (art. 21.5. of the Criminal Code).
In reality, this strategy is valid for almost all cases, including those in which a free acquittal is available. Frequently – when it is possible to do so – I advise clients to deposit the amount of compensation in the court account, indicating that it is for the reparation of the damage. If our client is happily acquitted, the Court will return the money; if convicted, it will be for the victim, but our client will see the duration of his sentence reduced thanks to this extenuating circumstance.
It is very good, in the process of conclusions, to explain to the Judge how honest our client is who, in spite of being convinced of his innocence, consigns the amount of the possible compensation in order not to leave the victim helpless in case the Court understands that he has committed a crime.
Seventh, undue delays.
It is increasingly strange to find a criminal procedure that ends within a reasonable time, so the usual rule should be to ask for the application of this extenuating circumstance (art. 21.6 of the Criminal Code).
In many cases it will be convenient to agree with the Public Prosecutor (and, if appropriate, with the prosecution) on a conformity agreement and to accept a lesser penalty than we think might be imposed in the event of a trial.
Two tips. One, it is preferable to meet with the Prosecutor a few days before the trial date to negotiate and close the agreement: my experience is that more favorable agreements are obtained by negotiating in the same courtroom minutes before the trial (and with the Judge listening to the negotiation!!!). Two, there is no reason to wait for the oral trial phase to arrive at a conformity: usually it will be more advantageous for our client conformity in the pre-trial phase (art.