Every criminal lawyer has ever had to answer the same question: “How can you defend a person if you know that he is guilty?” The answer lies in the Law, which establishes that all persons – be they innocent, guilty, or under-pensioners – have the fundamental right “to defense and legal assistance, (…) to use the relevant evidence for their defense, not to testify against themselves, not to confess guilty and to the presumption of innocence ”. And the lawyer is the person in charge of guaranteeing that whoever is subjected to a criminal procedure can exercise that fundamental right.
In fact, the greatness of a 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 of defense.
But this post does not deal with the ethical aspects of defending a guilty person, but with a practical problem that a lawyer can also consider: how to defend a client who, not only is guilty, but also has such prosecution evidence. resounding that it is impossible to obtain absolution?
Well, here is a list of possible strategies:
First, study the prescription.
The prescription 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 delay of the victim in reporting, or the slowness of the court in question, the time elapsed from the commission of the crime until the procedure is directed against the culprit exceeds the terms of the Penal Code, and it will be enough for us to claim the prescription to save our client from the dreaded sentence.
Second, request the nullity of the evidence against the charge.
Sometimes, those evidence that we believe devastating against our client have been obtained by illegal means or with violation of fundamental rights. As in the fight against crime, not everything goes, the Organic Law of the Judiciary establishes that “the evidence obtained, directly or indirectly, violating fundamental rights or freedoms will have no effect.”
The invalidity of the evidence can be requested at various moments of the process: when the summary secrecy is lifted, during the investigation, as a matter prior to the beginning of the oral trial, in the appeal or cassation … And do not be discouraged if the first once it is requested, 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 charged yet, 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 capacity for conviction to avoid the client a criminal procedure. 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) to avoid filing a complaint, and on the other, to convince our client that -Although pride dictates otherwise- 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 their interests really are.
Fourth, be realistic and do not be obsessed with an impossible acquittal.
A typical vice in beginning lawyers (and sometimes not so beginning lawyers) is to lose perspective, get carried away by excessive optimism, and convince the client that their case is won when it is not.
The lawyer must calmly assess the case that is entrusted to him (the evidence for the prosecution and discharge, the applicable jurisprudence …), 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 conviction, we cannot play double or nothing with the freedom of our client: we will have to focus on ensuring that the sentence is as short as possible.
Fifth, confession and collaboration with Justice.
It may happen that our client comes to us before his accusation, because he knows that he is going to be imputed soon. The client has committed a crime, the investigation is about to reach him, and based on the data we have, his conviction will be inevitable.
In that case, it may be convenient to go immediately to the Guard Court to present a document confessing the crime. In this way, our client will be able to benefit from the extenuating confession to reduce the sentence.
But beware: the confession must be given before the procedure is directed against our client, otherwise there will be no mitigation. In addition, the confession must be complete (if we keep data and they discover us, extenuating goodbye) and sincere (if our client misses the truth in some essential point and is discovered, he will also lose the extenuating factor).
If, in addition to confessing, we lend a useful collaboration with the investigation (providing documentation, etc.) we could achieve that the confession is considered as a highly qualified mitigating factor, or even that a new analog mitigating factor is appreciated.
Sixth, the reparation of the damage.
Another simple means to reduce the penalty with an extenuating circumstance is to repair the damage, that is: to compensate the victim before the trial.
In reality, this strategy is valid for almost all cases, including those in which we see a free acquittal accessible. It is very good, in the process of conclusions, to explain to the Judge how honored our client is, who, despite being convinced of his innocence, consigns the amount of the possible compensation so as not to leave the victim helpless in case the Court understands who has committed a crime.
Seventh, undue delays.
It is increasingly rare to find a criminal procedure that ends within a reasonable period of time, so the usual rule should be to request the application of this mitigating factor.
In many cases, it will be convenient to agree with the Prosecutor (and where appropriate, with the prosecution) a conformity agreement and accept a lesser penalty than what we think could be incurred in the event of a trial. It is preferable to meet with the Prosecutor days before the trial date to negotiate and close the agreement: my experience is that more favorable agreements are obtained, so negotiating in the same courtroom minutes before the trial (and with the Judge listening to the negotiation ).
Ninth, a practical example of defense strategy.
Our client has found out that he is going to be reported by a person he attacked in the nightclub causing him an injury that required medical treatment for his cure. In addition, we know that there are medical reports that prove the extent of the injury, and a video recording that demonstrates the existence of the assault and the authorship of our client: the conviction is practically certain.
Well, we will take the following steps:
1º.- We will accompany our client to the Guard Court to present a brief confessing the facts.
2º.- We will indicate to our client that he consigns in the account of the Court the corresponding amount to apply the scale of compensation to the injuries caused.
3º.- In his declaration as accused, our client will acknowledge the facts. Once your statement is completed, we will request the transformation into urgent proceedings for speedy trial.
4º.- We will meet with the Prosecutor and negotiate an agreement. The Prosecutor will not object to appreciate the extenuating circumstances of confession and reparation of the damage. If it is also reasonable, we can convince you to appreciate another mitigating factor for having acted in a drunken state, since the events occurred at dawn in a nightclub (the latter, which without objective evidence would be very difficult to prove in a trial, it is more feasible to agree to it with the Prosecutor).
We therefore have three extenuating circumstances, which would allow us to reduce the penalty by one or two degrees. What was a penalty of between three months and three years in prison, reduced by two degrees, is left in a penalty of between 23 and 45 days in prison: we could agree with the Prosecutor 30 days in prison, which would be replaced by 60 days of fine.
5º.- The Judge will reduce the agreed 60-day fine by one third, leaving it for 40 days. In this way, what threatened to end in a sentence of up to three years in prison for our client, will have been left with a fine.