Crime, Trials

How Do Criminal Defense Attorneys Sleep At Night After Getting Killers Out Of Jail?

There are very few instances when due to defense counsel's great work a killer like the fictional Hannibal Lecter is put back on the street to kill again.

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A question I often get at parties or from colleagues who don’t do criminal defense work is: How can you defend people you know are guilty, and what does it feel like getting them off?

There are pat answers to such inquiries:

  • I don’t pick and choose my clients.
  • A guilty man is as entitled to a jury trial as an innocent one.
  • I’m protecting everyone’s rights when I’m protecting the rights of a guilty person.
  • I wasn’t at the scene of the crime; I really don’t know if he’s guilty or not.

Some of these answers are more true than others.  But one that’s only half true is that we don’t, as defense counsel, have a sense of whether our client is guilty of the crime or not.  The client generally did do something to get arrested.  However, it’s often less than what he’s been indicted for.  He’s charged with murder, when it was really manslaughter; or selling drugs instead of merely possessing them; or robbery instead of misdemeanor assault.

So getting a “guilty man off” doesn’t bother my conscience.  Most times, he’s already spent years in jail awaiting trial, and in the end, he’s often convicted of what he should have been charged with in the first place.  For example, I have a client now who shoplifts at Sephora.  (She’s been known to grab perfume off the shelf and hide it in her purse.)  In this instance, when approached by a security guard who grabbed her arm, she allegedly pulled away, accidentally scratching the guard on his arm.  So instead of charging her with shoplifting (a misdemeanor), she was indicted for Robbery 2 (causing injury to a non-participant of the crime in the process of seeking to retain the property).  If, after trial, she’s found guilty of only petit larceny, that’s a fair outcome.  I won’t lose any sleep.

There are very few instances when due to defense counsel’s great work a killer like the fictional Hannibal Lecter is put back on the street to kill again.

That said, I was fascinated by the case of Edgar Smith. Smith was accused of the horrific killing of 15-year-old Victoria Zielinski in 1957 in Ramsey, NJ.  He was found guilty and sentenced to the electric chair.  Smith confessed to the crime eight years before Miranda rights became law, and later with the help and support of famed conservative commentator William F. Buckley Jr., had his case reviewed by the U.S. Supreme Court on the basis of having been denied a hearing about the voluntariness of the confession.

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Buckley, founder of the National Review, and Smith started corresponding while Smith was in jail.  Buckley became convinced of Smith’s innocence.  He championed his cause, writing articles about the case, and enlisting the help of A-list appellate attorneys who persuaded the Supreme Court to order the Third Circuit to reconsider the denial of a hearing on the confession.  When the case got kicked back to New Jersey, rather than retry the case, the Bergen County Prosecutor’s Office offered Smith a deal: Plea to the reduced charge of second-degree murder and get a sentence of time-served. Smith took the deal and got out of jail.

In ensuing years, he wrote books about the criminal justice system (Getting Out), lectured, and appeared on television shows.  Buckley was satisfied.  He had done what he thought was the right thing — he’d gotten an innocent man out of jail.

Five years later, however, Smith was rearrested for the abduction of a 23-year-old woman in San Diego, CA.  Smith had picked her up in his car and when she tried to escape, he stabbed her in the chest, just missing her heart.

One of the first people Smith called after running from the police was William F. Buckley.  Buckley agreed to help Smith turn himself in.  Smith was convicted of attempt murder and sentenced to life.  He also admitted to the killing of Victoria Zielinski in New Jersey some 20 years earlier.

The case was in the paper last week because only now, six months after his death in a prison in California, was the news of his passing released to the press.  It’s unclear why the family waited.

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Buckley, before he died, expressed regrets at having championed Smith’s cause.  He was taken in by a con artist, who he’d helped get out of jail and who then came close to killing another woman.

It’s something all of us defense attorneys fear, but thankfully, it rarely ever happens.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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