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Criminal Defense Practice: A Mission Field?

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The beauty of being both a criminal defense attorney and a born again believer is that the arena is clearly a mission field, a real ministry. Of course, this is only true to the extent that the clients’ hearts are receptive to the Gospel.

Quite obviously, the clients’ hearts must be prepared first by the Holy Spirit, whose job it really is to “save” people. It is true, though, that many people do come to Christ throughout this ordeal. Some people argue that these “converts” are simply jailhouse Christians who find Christ in jail and subsequently leave Him on the courthouse steps when their plight is over. Though this is occasionally true, in just as many cases the convert has made a genuine profession of faith in Christ.

Pastors and evangelists and teams of missionaries will evangelize door to door, or use any number of outreach ministries in attempts to reach people who are not yet within the family of faith. But when a criminal defense attorney wants to share the gospel, the people are literally coming to the lawyer; the lawyer does not have to go to them. People are hurting and crying, extremely fearful of jail and/or prison, when they initially come to see the defense attorney; therefore, the ground is extremely fertile for the work of the ministry. The seeds of the gospel can be planted with relative ease, possibly taking root throughout the prosecution, while hopefully bearing fruit before too long.

Should a “believer” have less rights than a non-believer?

Should a non-believer in the messiahship of Christ have less rights than a believer? Of course not, as that would be an absurdity. By the same token, a believer in the messiahship of Jesus Christ should not have less rights under the Constitution of theUnited Statesthan a non-believer. Some folks refer to “believers in the faith” as Christians, but I am well aware that there are many faiths and many folks who consider themselves believers the deity of God, though they do not yet believe in the messiahship of Jesus Christ. Those people are even offended by the inclusion of the word “yet” in the last sentence, as they have no intention of ever believing in the messiahship of Jesus Christ. They still call themselves believers, however, believing in God; otherwise, they argue, the word “infidel” would apply to them, as their own faith defines any non-believer as an infidel. Regardless of your definition of the word believer, and whether that word refers to the messiahship of Jesus Christ or simply the deity of God, it is true that a believer should not have less rights than a non-believer under the Constitution of theUnited States, or under the laws of any government!

Let’s talk about theUnited Statesfor just a moment. We have the Constitution, which guarantees all individuals equal protection under the laws as more specifically provided under the Fourteenth Amendment. That same Constitution allows every individual to invoke the “privilege against self-incrimination,” as more specifically provided under the Fifth Amendment. Every individual has a Sixth Amendment right to confront witnesses against them, as well as a Sixth Amendment right to call witnesses on their own behalf. The same amendment provides each of us with the additional right against “being twice put in jeopardy for the same offense,” known as the double jeopardy clause.

Every individual also has the right under the Eighth Amendment against “cruel and unusual punishment.” Backing up for a moment, we cannot forget the Fourth Amendment, which guarantees every individual “the right to be secure as against unreasonable searches and seizures,” as well as the coveted First Amendment, which guarantees all of us our freedoms of speech, religion and assembly.

Confession is good for the soul, but timing is everything.

There are too many Christians today who believe that born-again believers must confess if they are guilty of a crime, contrary to the above-referenced, Constitutional rights and privileges. They will quickly refer to the Bible, essentially saying, to heck with the Constitution if there is a dispute between the Bible and the Constitution. But they miss the point:There is no conflict between the United States Constitution and the Bible, when it comes to the relative rights afforded believers in the messiahship of Jesus Christ and the rights afforded non-believers.

Jesus makes it clear that believers are held to the same standards or requirements under the magistrate’s laws as nonbelievers. He said that believers must “give unto Caesar what is Caesar’s, and give unto God what is God’s.” That’s right, we as believers must obey the magistrate’s laws. There are plenty of scriptures which tell us that God has ordained these certain magistrates for ruling today, commanding us to obey those secular laws of the government as we continue to worship God.

If we have the obligation to obey society’s laws, then we ought to be afforded the same rights and benefits there under. It could not possibly be suggested that Christians must obey the magistrate’s laws, while they may not have the same rights and benefits as non-Christians under those laws. That would be an absurd suggestion. That being the case, it is clear that a believer may invoke the privilege against self-incrimination and all of the other rights and privileges as enumerated under the Constitution, in just the same way that a non-believer may invoke all the rights and privileges under the Constitution. It makes perfect sense that believers should not have to confess to a crime simply because they are believers in the messiahship of Christ. Believers may choose to invoke the Fifth Amendment right to remain silent while availing themselves of all the rights and benefits and privileges under the Constitution.

Some people in the Christian faith community are quick to say, wait a minute — it says in the Bible, specifically in James, that we are to “confess our sins one to another!” They are correct; it does say a variation of that in the Book of James, specifically James 5:16; however, James 5:16 actually says:”Confess your sins one to another, praying for one another, that you may then be healed.” This verse refers to our need to pray for one another and confess our sins or faults to one another, as is done millions of times a day in every 12-step program across the world, understanding the healing power of this sort of “talk therapy.” Most pastors and theologians would agree that this verse in the book of James, together with others, could also be construed to suggest that we must confess to one another when we have wronged one another. This command appears to require that the defendant, assuming guilt, must confess to the victim. Again, it does not necessarily mean that the guilty defendant needs to confess to the police, prosecutor, judge, or jury!

Consistent with the 3rd chapter of Ecclesiastes, “there is a time for every season.” There may be a more appropriate time for the guilty defendant to confess to the involved victim, possibly after all of the defendant’s rights have been protected and exercised, or possibly after a case resolution has already been worked out. There is nothing in the Bible that requires a criminally accused or guilty defendant to confess to the magistrate or secular authorities immediately, forcing the guilty defendant to enter the prison ministry!

Other people of faith will quickly point to 1 John 1:9, which also discusses how we ought to confess our sins. Specifically, the Apostle John writes, “If we confess our sins, He is faithful and just to forgive us our sins and to cleanse us of all unrighteousness.” But again, that verse describes how we ought to confess our sins to God, and not to the police, prosecutor or judge, or to any other people within the church. Recall, as God tells us through Solomon in the 3rd chapter of Ecclesiastes, “there is a time for every season,” just as there is a “time for war, a time for peace, a time to be quiet, a time to speak up….” There it is, “a time to be quiet!”

Yes, it would be nice if believers only went to prison of their own volition, “called” to do prison ministry — going there because they really want to share the gospel, not because they must go there. I can almost hear the crowd of naysayers and other legalistic, pious and pharisaical believers heckling as I say this, telling me that I am really in the business of helping people avoid the consequences of their actions. I disagree. I simply ensure that my clients, believers and nonbelievers alike, have every opportunity to avail themselves of every right and benefit under the Constitution. This makes perfect sense, given the fact that these same clients are obliged to obey each and every one of society’s laws.

When one of my clients is charged with a crime, I unapologetically and zealously represent the client’s interests up to and including a jury trial. Should a jury acquit the criminally accused client, then it is the jury that let the individual go, not the defense attorney. Besides, if God wanted the client convicted, then the verdict would come back the other way, notwithstanding any great lawyering on my part. The defense attorney does not provide the means by which individuals escape the consequences of their actions. The jury makes a statement by their acquittal that the prosecution failed in its burden of proving guilt “beyond and to the exclusion of every reasonable doubt.” If anyone wants to point fingers, it is clearly more logical to point a finger at the jury. It is the jury of our fellow citizens who weighed all the admissible evidence and rendered a decision acquitting the individual of the charge, not the defense lawyer.

We either believe in this jury system of ours, or we do not. It is the government’s burden to prove the guilt of the accused; it is not the responsibility of the accused through an attorney to prove anything. Individuals who stand accused of crimes need not prove their innocence; quite the contrary, it is the government’s burden and duty under the law to prove the guilt of the accused “beyond and to the exclusion of every reasonable doubt.” Our system under the Constitution has been designed this way for over 200 years, and it is simply incorrect and misguided, at a minimum, to suggest that the defense attorney is somehow responsible for releasing an otherwise guilty defendant into society. The lawyer is not responsible for the outcome, or for the police’s mistakes or illegalities along the law enforcement road.

Most police officers are honest, dedicated and hardworking. They try to be fair and just and do a great job; but on one thing most folks will agree:there are a few bad apples in law enforcement out there making it harder on the whole bunch. The defense lawyer is not the person who helps the defendant escape the consequences of criminal conduct, if it is the police officer who committed an illegality in the investigation leading up to the arrest of the defendant. The defense attorney is simply ensuring that the government agents obey the laws, exposing police illegality when it is discovered. The lawyer elicits testimony from the involved witnesses for the defense and confronts witnesses against the accused, consistent with the defendant’s Sixth Amendment rights under the Constitution.

It is more appropriate to say that the defense is a champion of the liberties and freedoms in this country, ensuring that our rights and privileges under the Constitution are not violated or disrespected by the police, prosecutors, or courts. These same protections are just as equally available to people of faith as they are to atheists, agnostics or any other type of individual in this country, and when I say people of faith, I am including people of every faith. To be exact, I am saying that the Bible specifically allows for a born-again believer, a follower of Christ, to hold the same government to the same burdens and requirements under the law as anyone else.

We, as Christians, are held to God’s standards, and those standards include the requirement that we tell the truth. Of course, those standards are consistent with the secular laws, which require that the defense attorney not suborn perjury and otherwise refrain from eliciting testimony, which the lawyer knows to be untruthful. The secular laws are entirely consistent with the biblical admonitions in this regard, so there is no incongruence whatsoever between our secular law, and our biblical mandate, or God’s laws.

“You want to take the stand and lie?”

It gets a little trickier when a defense attorney knows that the client is guilty and yet is aware of the fact that the client intends to get on the witness stand and lie. Under those circumstances, the lawyer is obliged under the secular law, specifically in rules promulgated by the Bar Association, to not assist the client in perpetuating the expected perjurious testimony. The law allows for clients to get on the witness stand and tell their story, but the attorney is not legally or ethically permitted to assist the client by eliciting perjurious testimony. If the attorney knows that the client intends to lie, the attorney is disallowed from eliciting the perjurious testimony; and under those circumstances, the client ends up testifying by way of a narrative, as opposed to the traditional question and answer style of direct examination. It is fairly obvious to most jurors that the accused is not receiving the benefit of counsel in providing testimony under these circumstances, which tends to suggest to the audience that something is amiss, and perhaps the defendant is lying.

A defense attorney who knowingly elicits perjurious testimony from the client, or from any defense witness, is running the risk of criminal prosecution on a charge of subornation of perjury. Defense attorneys who acknowledge that they are accountable to our Heavenly Father, as well as to the magistrate, will no doubt refrain quicker from violating the law. They will appreciate the very real risk of offending our Heavenly Father, while simultaneously respecting the possibility of criminal prosecution for violating the secular laws.

To most obedient born-again believers, it is the fear of God and the “conviction” of the Holy Spirit, which is more disconcerting than any fear of violating the secular law in this regard.

In our fleeting and temporal secular life, the odds of getting caught suborning perjury are slim to none. If the lawyer’s client or defense witness were to say that the lawyer knowingly elicited perjured testimony, then a potential prosecution would eventually come down to the word of the witness as weighed against the word of the lawyer. Witnesses would necessarily need to confess that they lied under oath at a trial, in order to suggest that the lawyer assisted them in committing this perjury before the judge or jury. The lawyer, in real life, would typically deny these allegations as outrageous; pointing out that the accuser is now an admitted perjurer, not worthy to be believed under the present circumstances. No prosecutor I know would accept that case from a detective, or even consider filing the case. Therefore, in real life, the odds of a lawyer being successfully charged or prosecuted for “subornation of perjury” are fairly remote.

As a Christian criminal defense attorney, I am more concerned about disappointing our Heavenly Father than the real life prospect of actually being prosecuted for violating the subornation of perjury statute. It is my accountability before God and my reverence and fear of God, helped along by the convicting power of our Holy Spirit, which compels me to refrain from suborning perjury. To elicit certain testimony that an attorney knows is false would make it easier to win cases on occasion. A dishonest lawyer could actually hand-select a trumped-up witness and perpetrate a fraud upon the jury, quite easily defeating the prosecution. Notwithstanding the relative ease of doing this, it would simply be too convicting upon the born-again criminal defense attorney to accomplish this and still have any real peace.

This being said, born-again believers who practice criminal defense law are held to an even higher standard (within themselves) than the typical secular, legal standards that constrain the average criminal defense attorney who does not have a personal relationship with Jesus Christ.

 

 

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About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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