Our fathers claimed, by obvious madness moved,
Man's innocent until his guilt is proved.
They would have known, had they not been confused,
He's innocent until he is accused.

Ogden Nash

"You Can’t Get There From Here"

Confront defense attorney Jaunita Brooks at a cocktail party about how she can, in good conscience, represent guilty people, and her first inclination is to flee.

    "Normally, I walk away and try to engage somebody else in conversation," Brooks says. "But if they won’t let me, the honest answer is that I am not the one that makes the judgment about whether the person is guilty or not. My role as a criminal defense lawyer is to keep the system honest. Either a judge or a jury or my client will make the determination (of guilt)."

    Just doing her job. Like her colleagues, Brooks, a partner with McKenna & Cuneo, notes that about 95 percent of all people charged with a crime end up guilty via plea bargaining. (Of the 16,573 felony cases filed by the San Diego District Attorney last year, only 688 went to trial.) So by default, the overwhelming number of clients defense attorneys represent are found guilty of something. The remaining 5 percent, defense attorneys say, have a legitimate need for a trial, with the primary reasons being disagreement over plea bargain offers or belief that the accused is innocent of the charges.

    Yet in an era of sweeping anti-crime movements, with polls repeatedly showing the public feeling less safe than ever despite statistically-favorable crime trends, defense attorneys admit they are feeling the heat of public scrutiny. The attention paid to O.J. Simpson's legal "Dream Team," and the success it achieved with the acquittal in his first trial, only served to raise the temperature.

    When challenged to defend their profession, defense attorneys turn to responses that range from Brooks' scholarly approach on her role in the criminal justice system to Milton Silverman's over-the-top nightmare scenario of police busting into homes unannounced and holding knives to family members' throats to coerce confessions.

    Pointed humor too has its place. "I was once asked by a minister, 'How can you represent guilty people?'" says Carmela Simoncini of Appellate Defenders Inc. "I asked him, 'How can you preach to sinners?'"

    Attorney Kerry Steigerwalt, whose clientele tends to be wealthy and charged with violent crimes, says he regularly faces questions about defending guilty clients. "My answer is they aren’t always guilty," says Steigerwalt, 38. "They truly aren’t. And when they are guilty, they are not always as guilty as the prosecution makes them out. And when and if they are guilty, the question becomes: Why did this happen?"

    Simoncini describes defense attorneys as professionals under fire in part due to skillful marketing by prosecutors. Simoncini recently earned the media limelight for getting a man, Frederick Daye, 36, out of jail 10 years after he had been wrongly incarcerated for a rape, robbery and kidnapping.

    "A lot of people, because of a very effective public relations campaign, feel that the district attorney or the (state) attorney general or the U.S. Attorney represent the people; that they are their attorneys," Simoncini says. "But that’s not true. They are all part of the executive branch of the government. And they have at their disposal a great arsenal of devices to not only make accusations, but to prove them."

    For Mario Conte, head of Federal Defenders of San Diego Inc., turning the question around is a favorite way to answer queries about defending those charged: "I say, 'If you had a loved one, who, for whatever reason committed a crime, would you ask their lawyer that same question? Would you say, how can you do that?'" His second favorite answer? "I do it because I love it. That usually shuts them up."

    In many ways, Conte, 53, says the legal profession, and defense attorneys in general, have put themselves in a misunderstood light by hanging around with each other, whether socially or in professional groups, and by not meeting the public to better explain their occupation. To better talk up his profession, Conte three years ago began joining non-legal organizations like the Arthritis Foundation where this month he co-hosts a roast for television personality Ted Leitner. "I don’t go out with lawyers and I don’t go to gatherings of lawyers," he says. "All we are doing is kind of pontificating to each other."

    What gets Conte worked up, thumping for emphasis on his desk while he answers, is what he sees as the double standard of many who dump on defense lawyers.

    "I have had people criticize me for what I do," says Conte, who saw a client, Judge Dennis Adams, convicted last month on bribery charges. "But you know what, they are the first ones banging at this door, at this office, wanting a lawyer when someone they know or love gets in trouble. If society trivializes what we do, then society will be the victim of that trivialization. You trivialize the Fourth Amendment for the criminal, you trivialize it for the private citizen. And when the cops come in and knock down your door, you scream like a stuck pig. See, it is like, it doesn’t count for them, but it counts for me. Well, I don’t see me or them. I see us. And it counts for all of us. If burden of proof, presumption of innocence and beyond a reasonable doubt don’t apply to everyone, then they don’t apply to anyone."

    At the Department of the Public Defender, Karsten Boone has frequently handled very public cases, like Robert Carl Schry Jr., the former high school gym teacher who shot a good Samaritan in the eye after the La Mesa man had come down to check out the vandalism of a neighbor's car. "There is always more to the events than the physical act," says Boone, who in the good Samaritan case saw his client convicted of assault with a firearm rather than on the attempted murder charge sought by the San Diego District Attorney's office. Boone argued Schry, who was deeply depressed suffering from two decades drug abuse, did not intend to shoot the man.

    Softly spoken and a former military prosecutor, Boone enjoys testing the legal system.

    "For me, the most fun part is when you get a cop or the expert witness on the stand who is one, not telling the truth, or two, over dramatizing what happened," he says. "The cross examination of those kinds of people, showing them for what they are, is what I find is the most fun in the case."

    Marjorie Cohn, a professor at Thomas Jefferson School of Law, was a defense attorney for 17 years and still works an occasional case. Among her clients was the man who mugged Susan Golding in a Mission Valley parking lot. Cohn, 48, says it is her role to make the prosecution prove its case. "My job is to run interference between my client and the machine of the state that is trying to send him to prison or possibly the gas chamber."

    Cohn, who did commentary on Court TV and CBS Radio during the first O.J. Simpson trial and is now co-writing with CBS correspondent David Dow a book about cameras in the courtroom, says she has no problems with the character of the people a defense attorney represents. "Most of the people charged with crimes are members of the fringes of our society," she says. "Without defense attorneys, they would get railroaded by the legal system."

    Do guilty people go free? Certainly. But not all attorneys admit to having performed any lawyering that on its own accomplishes that feat. Some do say, without getting specific, that clients who probably were in the general sense guilty walked out of the courtroom free, either due to their attorney's skills or prosecution errors.

    "I think it is probably the best thing for the system, because on a systemic basis, if you don’t hold each portion of the system to its burden, you and I can come in danger and I don’t want people kicking down my door," Boone says. "Students ask me if I don’t feel bad because someone I know has committed a crime is back out on the street. The answer is I don’t feel bad at all. It is part of my job."

    Steigerwalt ventures that "maybe it is unfortunate" that the guilty sometimes walk free, but that there are intangibles besides his skills involved. "Oftentimes the police have not done their job," he says. "If you get a lazy or unskilled prosecutor it is very true that you can out-lawyer them. That doesn’t always mean you will get an acquittal, but sometimes you do. Do I feel badly about it? No, because that prosecutor is getting experience. The law enforcement officer won’t make the same slip up and somehow, some way, it will make the system better."

    Conte, 53, is skeptical that a great bit of lawyering can convince a jury to set a guilty person free. "A case can be lost on bad lawyering skills, but I don’t think you necessarily win a case on good lawyering," he says. What is more likely to happen, is that members of the jury who convicted a client will praise the losing attorney when the case is over and ask for a business card. "That happens to every lawyer in this office."

    Silverman, who has starred in high-profile criminal and civil cases - he earned Sagon Penn an acquittal after Penn shot two police officers, one with his own gun; and landed large settlements for Dale Akiki, who was accused of molesting children at a church day care center, and Jim Wade, who was charged with raping his young daughter - wrote a 1983 book called "Open and Shut" about his use of a hypnosis defense to acquit an Imperial Valley woman on charges of soliciting an undercover police officer to murder her husband. He says the compromises in our adversary legal system that can set the guilty free also keep the innocent from being convicted.

    "People can go to sleep at night knowing that most of the people in our prisons have committed the crime," Silverman says. "They go to sleep because they know those people have been apprehended and prosecuted in a fair way."

    Brooks, who specializes these days in white collar criminal defense, also is a skeptic of the good lawyer theory. She certainly has been on both sides of the won/lost column, with high-profile victories such as the 1986 acquittal for auto maker John DeLorean in a case where the federal government accused him of embezzling $8.5 million (she said it was a loan from the head of Lotus Motor Co.) and a big hometown loss when Dr. Jeffrey Rutgard was found guilty earlier this year on 132 counts in a Medicare and insurance fraud case.

    Much more likely than an defense attorney's lawyering skills setting a guilty person free, Brooks says, is an innocent person getting convicted. "When a jury walks into a courtroom, there is not this whole presumption of innocence. It is just the opposite. They look over the courtroom, they look over at your table and they say, 'Gee, I wonder what he did, or she did.' The judge reads the charges and they say, 'Oh, that’s what he did.' And you know what? Everyone does it. I pick up the newspaper and see that they arrested somebody in a string of burglaries. Do I say to myself, 'Oh, they got the wrong guy?' No, I say 'Oh good, now I can sleep at night.' So (defense attorneys) have a huge uphill battle in order to get an acquittal."

    Overall, defense attorneys say the public's anti-crime sentiment is making their job tougher.

    "I really believe that every single day it is getting more difficult to have the innocent fairly judged," Brooks says. "It is because people have become so indoctrinated and thrown away the presumption of innocence. And I think the courts are much less impartial. Judges are now joining the political platform and making it extremely tough to get a fair trial."

What Spending For A Pricey Attorney Buys     Does money buy a defendant a better shot a victory? Sort of.     Top private defense attorneys seem to have in common years in the trenches at a public defenders office. And they have nothing but praise for the colleagues they left behind.     "Some of the best lawyers are, in fact, public defenders," says Kerry Steigerwalt of Nimo & Steigerwalt. "However, public defenders are necessarily hampered with a case load they cannot really control. One reason I left the public defenders office was I felt I could not put enough time into a defense. In private practice I really regulate my schedule. I usually am not found in a position where I’m overloaded."     Public defenders say they're as good as their private sector counterparts.     "In my opinion, you don’t get a better defense," says Karston Boone, chief deputy of the Department of the Public Defender which handles 18,000-20,000 felony cases a year. "What you do get, if you are paying the right money, is more hand holding. That's not to say every lawyer in this office is Johnnie Cochran."     Juanita Brooks of McKenna & Cuneo says money can buy a defendant a better chance at freedom.     "If the quality of the attorney has a correlation with the amount of money being expended, than that is true," she says. "But that is not always true. There are some really excellent public defenders who do a great job."

Here's What You'll Pay When You’re Accused Of Murder     You’re accused of murder. Now what’s it going to cost to prove your innocence?     Well, if it is a typical murder case, one in which just a couple of witnesses need interviewing and the forensic work won’t involve DNA testing, a top flight defense attorney like Kerry Steigerwalt is going to charge anywhere from $35,000 to $60,000.     If your case goes to the county public defenders office and is then kicked by the court to a private defense attorney under contract with the county, the tab will come in at $15,000 to $23,000, plus $5,000 to $10,000 in expert witness fees.     If the defenders office handles it internally, the cost averages $12,000-$15,000, says Karston Boone, chief deputy of the Department of the Public Defender.