We’re often asked what the difference between a criminal defense attorney and a ‘regular’ attorney is. After all, once an attorney passes the Bar exam they can practices in any area of the law they want, whenever they want. Right? And, since we’ve seen countless episodes of every variation of Law & Order and way too many true crime documentary series, it certainly looks like criminal law is fairly straight forward – especially if you know the rules of evidence. Right?
Well, no. Passing the bar and practicing law is like being coached enough to get in a batting cage and pound baseballs. Being a criminal defense attorney is standing at the plate facing Clayton Kershaw in the late innings of a game that counts – really counts.
It’s knowing the law, it’s knowing evidence, it’s understanding people, it’s knowing judges, juries, prosecutors, the system all while handling the pressure of knowing you have someone’s future in your hands.
That’s a lot but there’s one more thing that may be even harder. One thing that has to be experienced more than once or twice to break the hold most of us were molded by as we grew up: the realization that police, prosecutors, and ‘the system’ make mistakes and get it wrong.
That’s not as easy as it sounds. Police reports, indictments, warrants aren’t written to entertain doubt, they’re written to convince the reader that the arrestee/defendant did it. They allow for no ambiguity.
To the novice, they are as intimidating as they are damning. To the criminal defense attorney it’s what’s missing that counts. Procedure, witnesses, evidence, logic.
Then it’s about investigating yourself to get the full story. Failing to do that is failing the client and, in a way, the system.
It may go without saying but our system is designed to get it right the first time, it is emphatically not designed to exonerate those who are innocent but found guilty.
There’s a reason you only read about people set free after 10, 15, 20, 30 years imprisonment – that’s how long it takes to reverse a guilty verdict. It only happens for a very, very lucky few. You have to wonder how much longer you see these stories, by the way, when the attorney general of a state argues in front of the Supreme Court that ‘innocence doesn’t matter’ when considering overturning wrongful convictions.
Being a criminal law attorney means being that one chance a client has to get it right.
Check out the two cases below – amazingly, they came out of the same state two days apart and are eerily similar in every other regard.
Raymond Champagne steadfastly proclaimed he had been wrongly convicted of murder for 41 years before he was finally exonerated.
He was a model prisoner in a notorious Massachusetts prison due to be releases within a year or two when another inmate in his unit was stabbed to death.
A pair of bloody jeans was planted in his cell and he was promptly charged with first degree murder.
He was already an inmate. He got a public defender who took one look at the police and prison report and advised Ray to plead guilty. He went to trial instead and lost. He had no chance, really, because his lawyer did no investigating, asked no questions, and certainly didn’t have any use for his client’s story.
It was bang, bang. From arrest to trial to verdict took only a few months. Ray got life, his lawyer went on to the next client.
Here’s the thing – a murder trail normally takes time. When a client insists on going to trial because they know they are innocent the lawyer has a duty to hear him out and do all he can to check out his story. That should take at least a year or more. If it had taken that long for Ray he probably would never have been convicted – less than a year after the trial proof of his innocence surfaced during another murder investigation. The police and the prosecutor’s office knew but kept it to themselves.
As the Boston Globe reported, “he spent 14,788 days in Massachusetts prisons devouring books and educating others, advocating for inmates’ rights, and becoming a self-taught jailhouse lawyer who would leave deadpan voice mails for his own attorney, gently reminding her that he was “still in prison.””
In early 2020, his attorney unearthed the evidence. Ray was released, then exonerated. He promptly helped to launch a non-profit to help the wrongfully convicted transition to life outside prison.
He was killed in a motorcycle accident two weeks ago. He died before he could collect the $1 million Massachusetts gives to the exonerated.
Shawn Drumgold was 23 when he was accused of the shooting death of a twelve-year-old girl who was sitting by a mailbox when she was caught in gang crossfire. It was an exceptionally high profile case and the Boston PD was under immense pressure to solve it – yesterday.
Shawn was arrested primarily because someone had to be arrested. He was blocks away when the shooting occurred, and, besides, the gunmen were masked.
Despite that the prosecution produced eye witnesses who identified Shawn as a shooter.
There was no physical evidence.
The case was so shaky, several detectives anonymously told the Boston Globe that ‘there was no way Drumgold was involved.’ That, of course, did not stop the trial from proceeding.
The prosecutor said, in 2003, that he “recalled being surprised by the 1989 verdict. The evidence against Drumgold was ‘weak.’ That, of course, did not stop the trial from proceeding.
The jury deliberated for six hours before finding Shawn guilty of first-degree murder, he was sentenced to life in prison.
Within a year or so cracks in the case against Shawn became evident. In 2002, The Spotlight team of movie fame at the Boston Globe dug into the case and found, well way too much to recite here. Quick rundown: the police withheld evidence; the key prosecution witness was impaired by brain cancer and had serious memory issues; a detective had paid another key prosecution witness; it gets worse from there.
Shawn Drumgold was released in 2003. In 2009 a federal jury awarded him $14 million in damages. The city appealed, the matter was finally settled in 2013 with a $5 million payment.
In poor health since the day of his release.
Shawn died two weeks ago of an aneurism. In his 14+ years in prison he had never had as much as a physical.
The point is - it takes years, decades to reverse a criminal conviction. That's why it's so important to get it right . . . from the start.