The view from the defense table

For decades, Raleigh lawyer Joe Cheshire has been one of North Carolina’s most successful and highest-profile criminal defense attorneys. He also has earned a reputation as one of the most respected lawyers in any field of practice. Lawyers Weekly writer David Donovan — until recently himself a practicing criminal defense lawyer — visited Cheshire in his Raleigh office to ask him to share his wisdom with readers. What follows is an edited transcript of that conversation.

How much of your role as an advocate for your clients goes beyond getting the best result in court for them? With some of your best-known cases, it seemed that the public rushed to judgment.

You have two different kinds of cases. You have cases that nobody hears about, and you have cases that everybody hears about. And the cases that nobody hears about, every now and then they’re the best cases that you ever had because nobody ever heard about them because you’ve done something with them that makes them quiet. Those are generally your great successes. In the cases where the publicity is there, you have two things that you have to deal with. You have to deal with the case itself and you have to deal with the perception of the case in the public because in today’s world those two things come together.

We’re a media-driven society now. You’ve got to win the publicity battle in order to be able to survive the courtroom battle. That’s a difficult thing that most people don’t really know how to do, or they feel uncomfortable doing. I’ve had a lot of experience doing that but I’m also a person, as everybody who knows me knows, who’s not afraid to say what they think, and not afraid to stand up to power or what I consider to be abuse of power if there is abuse of power going on, and that’s served a lot of my clients well over the years. And I hope and like to think it serves the profession well.

Do you think abuse of power is a frequent problem here in North Carolina?

What’s that old quote, that power corrupts and absolute power corrupts absolutely? I’m not sure that I wouldn’t be in favor of term limits, for example, for elected prosecutors. I think most prosecutors are absolutely properly motivated. It’s like anything else in life, the bad apple spoils the whole crate, so I think they get a really bad rap as a whole. But when there is that kind of abuse of power, it’s very dangerous and it has to be called because if you don’t call it and if you’re too afraid to stand up to it, then it just steamrolls and it gets bigger and bigger and bigger, until there’s no more freedom.

Any time you bring the state or the federal government down on a citizen, they have an enormous amount of power. The citizen has very little. And somebody has to stand up for the citizen. Somebody’s got to push back. That’s the great misunderstanding about criminal defense lawyers. There’s a saying among us criminal defense lawyers that we are liberty’s last champion because it’s really the excesses of prosecutorial zeal that can destroy a democracy more than anything else, the government being able to tell you what you can do and can’t do and criminalizing your behavior. In America today we’re criminalizing everything. I mean, our statute books gave gone from about a foot wide when I started practicing law to filling up bookcases that would fill this whole room.

But at the same time there are defense lawyers out there that just scream and yell about prosecutorial corruption about everything. That’s just as dangerous because, as I’ve said, the vast majority of prosecutors in the vast majority of cases, they’ve got a hard job to do.

I know you’ve talked about integrity and the importance of it for attorneys. Why do you think integrity is so crucial for criminal defense attorneys?

Well, it’s really all we have, other than our talent for communication, if we have a talent for communication. All we have is a willingness to work hard and an integrity that creates a situation where, when we speak, people will believe that we’re being honorable and telling the truth. Citizens don’t really understand us. They don’t understand how we can stand up for people who have done horrible things or who are accused of doing horrible things. A lot of times they look down on us, they see us almost as pariahs in society. So we have to have more integrity, we should want to have more integrity, than the average person because of what we do for a living. If you don’t have integrity, then when you speak, people might not listen to you, and in order to help folks, you have to have people listen to you. So you should always have integrity in doing what you do. That doesn’t mean that you can’t disagree with somebody or get mad with somebody or whatever, but you should always be honest in your feelings and honest in your beliefs and honest in your presentations.

You mentioned that some of your most gratifying successes are those cases that nobody has heard about.

There have been high ranking political figures that we’ve represented here in this office who no one knows were under investigation and it all worked out. Lots of captains of industry and heads of various corporations and just regular people who might have been charged with some kind of sexual abuse or something who didn’t do it, who are innocent, we’ve managed to work through the system and work through the facts and other things, and make sure there were no charges filed, or that charges went away without anybody knowing about it. Those kinds of things, they’re really your greatest joys, when someone who’s accused of something and they can have their life ruined and you manage to make that go away without it happening.

I’m sure in a lot of those cases, just having the case go away without the notoriety was important.

Oh, more. Your life is kind of ruined by a charge. And we like to say “presumed innocent,” but we don’t really believe that. It’s really a legal fiction. People really believe you wouldn’t be charged if you hadn’t done something. The burden of proof is supposed to be on the state, but the burden of proof is really on the defendant to show that they didn’t do anything. So we deal with those legal fictions all the time. It makes citizens feel good to believe that they’re true, but they’re really not true.

So how do you disabuse a jury of that notion that if somebody is on trial, they’re probably guilty?

My experience with juries is that American citizens, they have their opinions, they have their beliefs, and they have their prejudices. But when they get in a courtroom and you have a chance to talk to them a little bit, and you get a commitment from them—I try to get a commitment from each of my jurors that they’ll do their very best to be fair, that they’ll look at me when the case is over and say through their eyes, no matter what their verdict is, that they really did their very best to be fair—my experience is that they really do that. I’m not sure I’ve ever had a jury verdict, win or lose, where I didn’t understand the jury’s rationale. So I have a lot of faith in jurors.

How do you still get the best result for your client in a situation where you don’t really have any leverage with the district attorney?

It is the most fascinating thing about what we do for a living, and I say this all the time, and I learned it from older lawyers when I was young, but we negotiate for the most important thing in a person’s life, and that’s their freedom, with no leverage. Sometimes it comes along. The Duke lacrosse case would be an example where the truth finally worked its way through and that gave us some leverage, and we found that someone was doing something improper, and that created some leverage. But you have to understand that the system is not designed to try every defendant. It couldn’t.

If the criminal defense lawyers in Wake County, for example, said we’re not going to plead another case, we’re going to try every case, the system would completely break down within four months. There would be no functioning justice system in Wake County. So you know that there has to be resolution of cases in order for the system to work, and then what you do is you try to understand as much as you can about the facts of your case and as much as you can about the background of your client, and you have to, in your mind, work out something that you believe a prosecutor could accept and then begin working to get them to do that. It’s selling an almost unmarketable product. I’ve always believed that some of the best salespeople in the world were criminal defense lawyers because they know how to take a product that nobody wants and package it in an acceptable way and get a prosecutor to accept the package and a judge then to accept the agreement.

Do you sometimes run into situations where a prosecutor wants to beat you because you’re you?

Oh, yeah. Absolutely.

How do you deal with that?

You do your best to beat them. It’s not my style to ever directly take that on. Some lawyers would directly take that on. I don’t. I work doubly hard in a situation like that, to try to develop a relationship with that lawyer. We tried a murder case several years ago where the prosecutor just wanted more than anything in the world to beat this office. And we tried every way we could to resolve the matter and we couldn’t resolve it, and it went to a long, contested trial and we were fortunate enough to beat him. But you don’t ever try to make it a competition between the two lawyers, because if you do that then neither side is serving their client very well. Sometimes you can’t help it. Sometimes somebody forces that on you, but I’ve never really particularly liked that. I don’t like fighting with other lawyers, really. Some people would perceive differently, but that’s the way I feel.

You talked about criminal defense attorneys being pariahs in some ways. Is there anything the bar can do to help cultivate a better opinion of defense attorneys, or is that just the nature of the job?

I think defense lawyers have to do that themselves by going out and speaking to groups and by being understated and by being honest and explaining to people why they do what they do. Everybody loves a criminal defense attorney when they need one. Then you’re the greatest person in the world. I get these very conservative people who come into my office who’ve just berated me for 15 years about what I do for a living, but their son’s just gotten arrested for they think is an illegal search of his school locker, and they’re just outraged and want all the police to go to prison.

We’re standing up to make sure that the law is properly enforced against an American citizen. That’s what we do. We are who we are. We could force everybody to read “To Kill a Mockingbird” every six months to remember who Atticus Finch is. We’re not all Atticus Finches, but our purpose is the same purpose that he served.

It seems that some people have a misconception of what defense attorneys do, that they somehow use legal technicalities to get cold-blooded killers off scot-free. More often, it’s the other way around, where you have innocent people that you can’t get acquitted.

You know, I’ve practiced law since August of 1973 and I’d have to go back and think about it, but I’m not sure I’ve ever participated in a case of a guilty person being acquitted, certainly not in a trial. Occasionally somebody might get convicted of a lesser offense or something like that, but it’s really rare. Maybe O.J. Simpson. But it just is so rare that that happens.

And what is a technicality in one person’s mind is a constitutional protection in another person’s mind. We have constitutional protections for a reason, and that is to keep us free from government just being able to do whatever they want to us. That’s what separates America from other countries, although it’s being eroded a little bit in America today. But people do have that perception. I think people being able to see live trials and actually see what goes on, I think it’s really been a help to people’s understanding of what goes on in court. Now, lawyers will try to take the rules, particularly in traffic and district court and those things, some of the rules are very pliable, and you’re trying to mess around with the rules to save somebody’s law license or do something like that. But once you get into fairly serious cases, you can move to suppress a confession, you can move to suppress a search, but there are very strict parameters about that and it’s very rare that it happens, and if it happens, it’s because the police did something really abusive or really wrong and it’s just very rare that it happens, but it is a perception. But I’ve had people call my house and tell my kids that they hope that somebody would come and rape their mother so I’d find out what it felt like.  It’s unbelievable some of the things that people would say to you and your family. I mean, I’ve been knocked down in a courtroom, in a courthouse, had police protection and stuff like that, all because I’m trying to do what I think is a really important job.

What would be the best piece of advice you could give to a new attorney coming out of law school and wanting to be a criminal defense attorney?

Love your clients. Understand your clients. Have a passion for helping your clients above and beyond what they’re charged for. And never think that there’s something special about you because you’re a lawyer, because there’s not. You’re just put into a particular place to try to do a particular job. Always be humble as much as you can, I think those are absolutely the most important things. Of course you’ve got to work hard, but I think it goes back to your question about integrity. Never give up your integrity. Always try to help your clients, but never give up your integrity. Always respect everybody. There are so many lawyers who don’t understand that the most important person in the courtroom is the clerk and the bailiff, and people who are not the judge and not you. As a criminal defense lawyer, you’re the least important person in the entire courtroom.

It seems like the clerks are sometimes to best people in the courtroom to make friends with.

There’s no question about it. You’ll watch lawyers who will go through a jury trial and never know the name of the clerk or the bailiff. And you’ll watch a lawyer like Wade Smith, who I learned this from, who during a break spends more time talking to the bailiff and the clerk than they do talking to anybody else, because those are the people who know what goes on in courtrooms. Those are the people that can help you. Those are the people who can do all kinds of things for you. There’s nothing special about you because you’re a lawyer. I tell young lawyers all the time, when my car doesn’t start in the morning, the most important person to me in the world to me is a person who knows how to work on a car. Just because I was blessed enough to be able to go to law school doesn’t make me more special than anybody else, and jurors relate to that, too.

You’ve been doing this a long time. What makes you get up every morning wanting to do this?

I’ve said this a million times in speeches and stuff, but this has been a calling for me since I was 14 years old and read “The Diary of Anne Frank” and then was blessed enough to meet Martin Luther King, Jr. and was blessed enough to have a family that was engaged in the civil rights movement in the South for generations, and just kind of born with a respect for, but a distrust of, power.

I see it as a calling. I see it as my mission. I’ve been able to literally help influence the lives of thousands of people—get people jobs, to get people off drugs, to get people off alcohol, to help people put marriages back together, put families back together, to help people get on the right track to educate themselves. I guess that’s it. I’m more tired now. At 65 years old it’s hard to be here at eight o’clock in the morning and leave at seven-thirty at night day after day after day, but there’s a certain amount of a passion that you have for it that it’s real hard to walk away from. I mean, I don’t want to end like Willie Mays. I don’t want to be walking into a courtroom one day and have to have young lawyers trying to make sure that I don’t fall as I’m trying to get up to talk to the jury. I won’t do that. But I think as long as I feel like I’m making a difference in people’s lives, I’ll probably hang in there a little while longer.

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Carrying on the legacy
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Joseph Blount Cheshire V has a lot of shoes to fill. Five pairs, to be exact. Or at least that’s how he feels as the last link in an unbroken chain of Joseph Blount Cheshires to practice law in North Carolina over the past 171 years. Read full story.