Who defends the accused? 6 San Mateo County defense attorneys share their experience

He comes to the profession with a unique perspective, and one that’s closer to the fragility of human life than many will ever get. As a freshly-deployed, nearly-19-year-old young man, Carr served in the Vietnam War. From his helicopter perch in defense of country, he took lives.

“When you see how easy it is for people to descend into their worst characteristics when they’re under fear, constant pressure, denied amenities and all of that, how they can start to act out, brutally, lose touch with their humanity,” he said. “That enabled me to be in touch with people charged with crime.” 

As such, Carr does not fall into the quadrant of, as he terms them, self-righteous individuals who “think they could never find themselves in a position where they could kill something.”

His passion for criminal defense comes from an entirely contrary moral ethos. 

“I don’t judge people, lest I be judged,” he said. “It’s a very large, personally large, proof that he who lives in glass houses should not throw the first stone. All of humanity lives in that glass house, which is why we defend people, why in this country, we have rights, why we prosecute people, why we have a constitution … it is the recognition that people are frail.” 

Many defense attorneys, like Carr, have developed a complex understanding of the human condition and human behavior as a natural consequence of the work. 

For Chuck Smith, who has practiced law as a defense attorney for more than 30 years, a particular case stands out. It was a defendant who, during the course of a home robbery, accidentally murdered the owner of the home, suffocating him with a piece of duct tape intended to keep him quiet during the crime, Smith said. 

“I tried to defend this young man, and a lot of my rich friends from my golf course were like, ‘how can you defend an animal like that?’” he said. 

What Smith’s golf buddies had the luxury of not understanding, he said, was the client’s background. His mother was a prostitute, and in the course of living in motels the family could not afford, the defendant saw his 12-year-old sister raped in exchange for payment.

Smith’s client eventually received life without parole for the crime — although it’s up on appeal — but it’s a case he thinks of often. 

“How do you think you would have turned out?” he said. “That’ll never, never leave me.” 

Lisa Maguire, who currently heads the county’s Private Defender Program, spent much of her prior tenure as an active attorney for PDP clients working on gang-related cases. Like Smith, getting to know her client’s backgrounds gave her empathy for their legal situations, she said. 

“There were so many young men that I represented that I felt like, given different circumstances —  had they been born in a different neighborhood, had they been given different opportunities — these would be highly successful, productive members of our community, but they weren’t,” she said. 

It also offered her a vivid understanding of how racial injustice, including overpolicing and mass incarceration, impacts the criminal justice system, she said. 

Of the many questions defense attorneys are peppered with by curious acquaintances, perhaps the most common is how they defend the guilty, particularly those guilty of heinous crimes. 

Through the private defender program, Jonathan McDougall is currently representing the man alleged to have killed seven fellow Half Moon Bay farmworkers. He said that while guilt or innocence plays an obvious role from an evidentiary standpoint, the defense’s natural role in a well-functioning criminal justice system is always to obtain the best possible outcome for one’s client. 

“It matters, but not in the dinner table cocktail party scenario — no, it does not matter to me,” he said. “I have always taken it as finding people at their worst and trying to do the best for them … it’s never really been an issue for me in terms of guilt or innocence.” 

Many of the high-profile cases that have stuck with him included a complex mental health element, McDougall said, including a mother who attempted to drown a baby she had just given birth to in a Redwood City McDonald’s bathroom and a young man who attempted to detonate pipe bombs at Hillsdale High School.

He wouldn’t say it to a court, Smith said, but did candidly detail one case in which he wished a former client got a higher sentence — and in general, representing those accused of child molestation proved difficult for him when his own children were young, he said. 

The case Smith termed the “worst human being” he ever represented involved a man allegedly bringing in young women from the Philippines under the pretense of work, then sexually assaulting them — with one of the victims escaping, running down Woodside Road. The defendant, who eventually received probation, fired Smith after he felt the attorney didn’t advocate for him strongly enough during the preliminary hearing, he said. 

“Of course, I couldn’t do it, but I wanted to go to the DA ‘s office and say, ‘are you kidding me? This is one of the worst human beings on the face of the planet. He is an animal. He is a predator. He threatened to kill her. He’s been raping girls. How in the world can you give this piece of s— probation?’” Smith said. 

On the flip side, defending a client one truly believes is innocent comes with its own challenges, Carr said. 

“If you’re under the pressure, you really believe this person is innocent, are you going to even subliminally work a little harder. I think that’s human nature, and it can’t be avoided,” he said. “You try to avoid it, because the person that looks quote, ‘guilty,’ but is improvably guilty deserves as much defense as the person who was innocent.” 

It’s common for defense attorneys to have prior careers as prosecutors with the San Mateo County District Attorney’s Office before moving into criminal defense. 

For some, like Dean Johnson, that switch was largely predicated on a desire to try something new, and think of cases in a new light — defense attorneys, he said, are tasked with poking holes in the prosecution’s case, and proving that the government’s evidence isn’t up to the burden of proof. 

“When I was going into a high-profile trial, I always prepared what I thought would be the defense side of the case. And as it turned out, that the defense that I prepared for the cases that I was prosecuting was usually better than the defense that was actually presented by defense attorneys in court,” he said. “So I said, ‘gee, you know, maybe I have a talent for this.’” 

For others, like Maguire, representing a defendant simply felt more genuine than representing the government. 

“I felt like he gave me an opportunity to show more of my own personality, in terms of being empathetic, or in terms of being really reasonable about looking at things, and being open minded,” she said. 

The best way to view the switch, McDougall — who worked with the San Mateo County DA’s Office for five years before opening his own practice — is with mutual respect for the jobs both prosecutors and defense attorneys play within the legal system. 

“When you’re in the courtroom, it’s like any competition. It’s a basketball game or it’s a football game. Do your best. You play according to the rules. Do the absolute best for your client or for the people of the state of California,” he said. “Then when you leave the courtroom, it’s over.” 

One PDP attorney, Emily Andrews, has always worked with clients in need of a publicly-appointed defender and tried her first homicide case this summer. She works on some defense cases privately, largely in the family law region, but considers herself a true believer in defense from a restorative justice lens. 

“I’ve always wanted to see more restorative justice, less jail, more services, more rehab, more counseling,” she said. “These folks come from really broken homes and really bad places that we can’t even imagine. They don’t end up like that by choice, always. So for me, there’s always an explanation.” 

Andrews is more eager than some appointed attorneys to take cases to trial, she said, even if only to ensure unnecessary charges are removed. 

As a group, these defense attorneys largely agreed those within the profession share certain traits — chief among them, enjoying competition and the combative atmosphere. To an extent, both Carr and Smith said, there’s also a performance element to defense at trial.

“I tell all young lawyers who want to be trial lawyers, you’ve got to figure out who you are, because as a trial lawyer, particularly a defense trial lawyer, you’re an actor,” Carr said. “You don’t really think of it that way, but you’re an actor. And the problem is, you’re an actor with only one part to play, and that’s yourself.”