Kevin Sali: In a Criminal Case, Making Good Decisions Doesn’t Mean You’re Guilty

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Thursday, August 27, 2015

Kevin Sali, GoLocalPDX MINDSETTER™

The Terry Bean story has been drawing a lot of attention lately.  Bean, a longtime political activist, is facing charges in Lane County based on alleged sexual conduct with a minor.  He initially attempted to resolve the case through a “civil compromise,” in which criminal charges can be dismissed based on the payment of financial compensation to the alleged victim.  This attempt was unsuccessful—in Oregon, the judge has the discretion to accept or reject any proposed civil compromise, and in this case it was rejected.  

The next battle is over whether the terms of the proposed civil settlement should be made public.  Oregon media representatives want to know those terms, but Bean’s lawyers have argued that releasing them could prejudice potential jurors, who might view any offer made by Bean as an admission of guilt.

I have no idea whether Terry Bean is guilty or innocent of the charged conduct.  I do, however, believe that the concerns expressed by Bean’s lawyers are worth discussing.  I think they’re absolutely right that some would view Bean’s attempt to settle the case financially as an indication that the allegations are true—the theory being, presumably, that an innocent person would fight the charges on their merits instead of trying to make the charges go away by paying off the accuser.  And I think that’s unfortunate.  In my opinion, something like that has virtually no bearing on the question of guilt or innocence.

A civil compromise attempt is just one of a number of legal steps often viewed as evidence that someone must be guilty.  Others include hiring a lawyer and declining to answer police officers’ questions—suspicious eyebrows tend to be raised when it’s reported that someone has “lawyered up” or “taken the Fifth.”  But as a criminal defense attorney, I believe such reactions are misguided.  All of those steps are just as reasonable for the innocent as they are for the guilty.

In my own practice, I’ve represented a wide variety of people over the years.  There are certain pieces of advice that I give virtually all clients, regardless of the strength of the evidence against them or my own personal beliefs regarding their guilt or innocence.

Take the civil compromise option, for example.  If that’s available in a case, any competent lawyer will advise a client to at least consider it.  Even if the client swears he is innocent and there is strong evidence backing up that claim, the system isn’t perfect—trials are unpredictable, and the reality is that innocent people sometimes get convicted (just as the guilty are sometimes acquitted).  

So if a defendant—even a fully innocent one—is in a position to eliminate the risk of a conviction by making a financial settlement, that’s an option that clearly has to be considered.  (Some defendants refuse on principle to consider such an option, and insist on clearing their names through the trial process, accepting the attendant risks.  That’s an honorable response and one for which I have deep respect—but that doesn’t mean that those who choose a safer option are implicitly admitting guilt by doing so.)

The same is true for the other examples mentioned above.  Hiring a lawyer, for example:  in light of the complexity of the legal system, the resources on the government’s side, and the ease with which even an innocent person can end up entangled in a serious criminal case, it’s simply insane for someone to try to navigate the system without professional help.  

It’s not just those of us on the defense side who recognize that.  Several years ago, I gave a talk to a group of doctors about responding to legal investigations.  After I emphasized the need for getting good legal counsel on board as soon as possible, my co-presenter—an experienced, well-respected federal prosecutor—reiterated everything I had said on this point.  One of his comments that I particularly appreciated was that if the subjects of an investigation hire lawyers, the investigators and prosecutors don’t view that as evidence that they’re guilty—only that they’re intelligent.

And one of the first things a competent lawyer will say is that the client shouldn’t talk to the police (or anyone else) about the alleged conduct—at least not at first.  Once again, it’s not just defense lawyers who say this.  Almost 70 years ago, Supreme Court Justice (and former Attorney General) Robert Jackson wrote that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”  

There are a number of reasons for this advice, too many to describe here.  Suffice it to say that in some of my own cases in which innocent clients have finally been vindicated after spending deeply frightening periods in prosecutorial crosshairs, it was submitting to police interrogations that got them into those positions in the first place.  It’s an understandable decision, particularly for someone with a natural trust in law enforcement—but one that can have catastrophic consequences, and therefore one that virtually every good lawyer will advise against. 

As citizens in a society of open and public court proceedings, there’s obviously nothing wrong with our following those proceedings and forming our opinions as to which side has the better case.  But those opinions should be based on the quality of the evidence in the case, the credibility of the witnesses, and everything else that legitimately points to guilt or innocence—not on the taking of protective steps that any competent legal advisor would recommend.  As my prosecutor friend recognized, taking steps to safeguard your legal rights doesn’t suggest that you’re guilty.  Just smart.

Kevin Sali is a Lake Oswego attorney representing individuals and businesses in a broad range of criminal, civil and regulatory matters.  Kevin spent four years as a high school science teacher in Miami, Florida before earning his law degree from Duke University.  He is the author of Scientific Evidence:  A Manual for Oregon Defense Attorneys and numerous other writings on a variety of topics in the legal field, and is a contributor to Huffington Post Crime.  For more information visit salilaw.com. 

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Related Slideshow: Timeline of Terry Bean’s Life and Political Activism

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