What You Don't Do When You Think (Or Even Know) That Your Client Is Guilty

A conviction for simple robbery was reversed by the Kansas Supreme Court as a result of the trial court's failure to grant the attorney's motion to withdraw. At an ex parte chambers conference, the attorney stated to the judge that he had reviewed a surveillance video and concluded that it depicted his client in the act of the crime. The client denied it and the video was "grainy." The attorney contended that he was precluded "from presenting the evidence that [the client] wanted introduced."

The court found that the attorney's position

ignore[d] the separation of duties in a criminal prosecution...[the attorney's] duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. [The attorney] exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if [the attorney's] refusal to introduce evidence on [the client's] behalf was based on [his] out-of-bounds determination of guilt, rather than on the falsity of the evidence, [the client's] dissatisfaction was justified.

(Mike Frisch)