Ben Lowenthal: The Question Every Criminal Defense Lawyer Gets Asked - Honolulu Civil Beat

About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

When prosecutors pile on unnecessary charges, our confidence in public institutions erodes.

People ask criminal defense lawyers about it so often that I just call it the Question. It comes in many forms: How can you sleep at night knowing your client is guilty? Why do you represent criminals? How do you represent those people?

I can see why so many people ask, even clients ask it. Nearly every night on the local news there’s a scary story about people accused of breaking the law. If it’s not a less-than-flattering mug shot, it’s in-court footage of someone in a jumpsuit and bound in chains. It’s not a good look, and it’s easy to wonder about the lawyer speaking on their behalf.

Over time, I’ve come up with different answers to the Question.

First, there’s the issue of guilt. How do we sleep at night knowing our clients are guilty?

Lawyers almost never know if their client is guilty. Most people don’t bring their lawyers with them when they’re going to commit a crime. Lawyers at a crime scene are witnesses and shouldn’t be lawyering in the case. And even if a lawyer had witnessed something, it doesn’t mean their client is guilty.

Guilt happens in court. A person isn’t guilty unless they’ve pleaded guilty or have been found guilty by a judge or jury. It means that in most cases until 12 people agree that the prosecution proved its case beyond a reasonable doubt, or if my client pleads guilty, then none of my clients are guilty.

Guilty of what is another issue. Take burglary for example. In Hawaii, burglary in the first degree requires entering or remaining unlawfully in a residence with the intent to commit a crime inside. Proof of someone’s intent to commit a crime isn’t always apparent.

Lawyers deal with evidence. There can be overwhelming evidence about some things like going inside a house, and almost no evidence about other things like intent to commit a crime. It’s not a lawyer’s job to determine how much is enough to find a person guilty. That’s left for the jury.

Maui prosecutors frequently charge two counts instead of one, increasing bail amounts.
(Ludwig Laab/Civil Beat/2021)

So how do we sleep at night? Easy. Knowing someone is guilty at the start of a case is nearly impossible. And even if there was a way to know, it wouldn’t matter.

Something more important is at work. Like most defense attorneys, I believe strongly in the right to counsel. A person targeted by the police, investigated to the point of arrest and then formally accused of breaking a criminal law is up against the weight and power of law enforcement officers and prosecutors.

The Sixth Amendment to the United States Constitution says the accused gets to “enjoy” the right “to have the assistance of counsel.” Our state constitution has a similar guarantee. And a warm body in the courtroom isn’t enough. Counsel’s “assistance” must be what courts call “effective assistance.” There’s no distinction between the guilty and not guilty.

Before that person is punished with the stigma of a conviction, imprisonment, or in less-enlightened jurisdictions put to death, we expect the government to follow the rules in gathering evidence, charging the accused and having a fair trial. Criminal defense attorneys are there to call foul on the police, prosecutors and sometimes the court itself when they don’t follow the rules.

That’s the whole point of having constitutional rights.

The strength of the government’s case against someone isn’t the point. The criminal defense lawyer ensures that the prosecution and the courts treat even the most reviled people fairly and with dignity in our criminal justice system. If the police cut corners in gathering evidence, it is on the criminal defense lawyer to remind everyone that the ends do not justify the means.

Other times, prosecutors overstep.

Overcharging on Maui is a good example. It’s not uncommon for a person to get arrested under suspicion of possessing an illegal drug like crystal methamphetamine. But from that single act prosecutors here bring a bevy of felony offenses: possession, possession within 750 feet of a park or school and they may even throw in possession of drug paraphernalia.

Multiple charges can result in higher bail amounts and increase the likelihood of being stuck in jail while pleading not guilty.

Criminal defense attorneys help keep police, prosecutors and sometimes courts, honest. (Ludwig Laab/Civil Beat/2021)

It’s not just drugs either. An offense called habitual property crime occurs when a person commits a property crime after already being convicted of a certain number of other property crimes. Let’s say you get arrested for stealing a newspaper and a cup of coffee. You could get charged with theft in the fourth degree, the lightest theft offense on the books.

But if you have three prior shoplifting convictions, you could be charged as a habitual property offender, a felony that could lead to five years imprisonment.

Maui prosecutors typically charge two counts instead of one: one count for being a habitual property offender and another for stealing the newspaper. Criminal defense attorneys are there to point out that piling on these charges is blatantly unfair, distort what evidence the prosecution has against the accused and is sometimes downright cruel.

When the police cut corners, the rule of law suffers. When prosecutors pile on unnecessary charges, our confidence in public institutions erodes. Criminal defense lawyers are there to keep them honest in a lot of ways.

Most people accept answers like that. Occasionally, however, I’m asked how I can personally represent “those people.”

That used to bother me. Do people ask corporate lawyers how they represent “those corporations” that have exposed the public to deadly toxins? What about drug companies and their owners that have accelerated the opioid crisis? Do lawyers for insurance companies looking for ways to deny or minimize payouts for people mangled or killed in accidents get the Question?

What about government lawyers? Do people ask them how can they represent police officers who mistakenly burst into the wrong house and kill people living in them? Or who engage in high-speed chases and run a teenager off the road leaving him paralyzed for the rest of their life? I’m not sure.

But I am sure that anyone can be stopped by the police. Anyone, including ex-presidents, can be prosecuted by our state and federal governments. Anyone can go to prison. The poor, marginalized, and powerless, however, are usually targeted by the police and prosecutors. They’re the ones that are typically on television standing in chains.

Criminal defense lawyers don’t represent “those people.” There is no such thing as “those people.” There are just people who need help. It doesn’t matter how solid the prosecution’s case is against them, how fair the proceedings are, or even if they’re a bad person or not. They still have a say about what’s going to happen to them. That’s good enough of a reason.

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Latest Comments (0)

As a retired public defender, here's my two cents...When I defended criminals, I defended your rights with my last case, and the one I have now, and the one I'll have tomorrow. Wow, this just gets bigger and bigger... I've had 5000 cases, so I guess I've defended your constitutional rights 5000 times. Each time that I defended a criminal, I defended your right to keep your money and not be in jail; your right to stay married and to keep being a parent; your right not to be homeless. I defended your right to rent housing and to stay employed, or at least get a job, and yes, you can still vote. Those rights. And there's more. Our fellow countrymen and women, who fought and died and suffered, and their loved ones who spilled oceans of tears over rivers of blood to get these rights and to keep them? I'm part of that too. I respect them and honor their sacrifice when I fight for those same rights.

klknox413 · 1 week ago

I believe that the court of public opinion disagrees with Ben Lowenthal's stance. From people being interviewed on the news, to public forums like Stolen Stuff Hawaii, people believe that criminals are getting away with too many crimes, that our courts have revolving doors, and that there is a shortage of police. Possession of meth near a school or public park with kids around should not be an "added on" charge by prosecutors??...It is a more serious offense by law. Maybe Oahu prosecutors should follow Maui's exmple.

Kalama · 1 week ago

I was arrested in a sting operation along with many City and County workers at what we thought was a fund raiser. Most pled Deferred Acceptance of Guilt while several of us got a different lawyer, who pointed out to the judge that the police were in violation and didn't read us our rights. Our photos and records were given to us and our records were expunged. The arrest "never Happened." As a former police officer at the time, I had no respect for the drunken lead sgt. in the case. Yes, innocent until proven gulity, in spite of the media's occassional rush to defame the person being arrested with circumstantial evidence.

Koaniani · 1 week ago

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