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Defensive Stand: The Role of the Criminal Defense Attorney
by Bill Sargent, Author and Columnist
   
 
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<b>Bill Sargent, Author and Columnist</b>
Bill Sargent, Author and Columnist

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A Crimminal Defense Attorney's Perspective

September 6, 2020
The Post Newspaper

Editor’s Note: This is the fourth in a series of eight columns on the criminal justice system in Galveston County and the first from the defense attorney’s perspective.

The basis of our criminal justice system is that every defendant has the right to legal representation and a fair trial.  Criminal defense attorneys play a critical part in this process. 

Work Load:
Byron Fulk, a defense attorney, told me “I typically carry no more than seventy cases at any given time.”  With court appointed cases, attorneys can pass up cases, e.g., some lawyers will not take sexual assault or sexual molestation cases. “I can’t in good conscience take a case that I find morally repugnant because I know I will not be able to provide a zealous defense for such a client,” Fulk said. 

Representing Guilty Clients:
If a client is guilty it limits the criminal defense attorney’s options.  Fulk said in these situations he’d look for reasons to throw the case out, like if the police did something wrong. “I will not put my client on the stand if I know he is guilty because I don’t want him to say something that suborns perjury by lying,” Fulk said.  In his experience a guilty person is looking for a plea deal.

Preparing for Trial:
In preparing for trial the defense attorney needs to convince his client to trust him.  The attorney needs to hear the truth in order to do his job well.  Then he looks at all the evidence, talks with the witnesses and in some situations consults with experts. He’ll be looking for mitigating circumstances that will help his client.  Fulk said “Regardless of whether my client is guilty or not, I need to ensure that I do everything possible to represent him.”

Different Standards:
Criminal defense attorneys have a different standard than the prosecutors.  Prosecutors must seek “Justice” which means they may not take a case to court if they cannot prove guilt beyond a “reasonable doubt.”  The role of a criminal defense attorney is not to seek justice, but instead to offer up a zealous defense for his client while never attempting to defraud the court. 
    
Plea Agreements:
The defense attorney gives his client solid legal advice and then the defendant decides whether to seek a plea agreement or to go trial.  “The DA’s office will usually offer a plea agreement.  Then I’ll take it to my client and advise him whether I think it is good or bad,” Fulk said.  “Or I may suggest a counter offer for a lesser charge.”  
“If my client decides not to take my advice or we’re not seeing eye-to-eye, then I may need to step down from the case, but this doesn’t happen very often,” Fulk continued.

“In my experience when it comes to the validity of search warrants or ‘probably cause’ traffic stops, 95% of the time the police get it right.  But in 25%-33% of the cases I see, the police or prosecutors are over charging my clients,” Fulk said. “The vast majority of officers in our county are good people who do their job well, but there are a few who should give us concern given the current climate. That small minority should be culled from the force or retrained,” he concluded. 

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