The Sound of Pursuit Podcast: Criminal Defense Investigations
Audio + edited transcript of Hal Humphreys’s conversation with Lubbock defense attorney David Guinn on why defense work matters.
“How can you defend criminals and ‘lowlifes’?” As a criminal defense investigator, I get questions like that all the time — sometimes, from PIs who hail from law enforcement and can’t imagine themselves going over to “the dark side.”
There was a time when I asked that question, too. But like most of us who do this work, there’s usually a conversion moment (or a series of such moments), when the complicated human drama of a case unfolds before our eyes, and we begin to see things differently.
I’ve had my eyes opened again and again. It happens at some point in nearly every case I work.
Now, when someone asks me the usual question, I give my standard answers, usually tailored to the asker’s attitude. I think most defense attorneys and investigators have an array of answers ready — some a little snarky, some in earnest. To test my theory, I asked Lubbock attorney David Guinn how he responds to these queries.
You can listen to his answers below. Or, if you prefer, scroll down for an edited transcript.
Sound of Pursuit audio:
“How can you defend criminals?”
HUMPHREYS: So this month at Pursuit Magazine we’re talking about criminal defense work for private investigators. I’ve had several people across the country say, “How do you do that kind of work, defending criminals like that?” If someone asks you that question, how do you try to convince them that the work we do is just and really a good thing to do?
GUINN: The first thing I try to assess is: Are they really asking me, or are they just egging on a fight? And if it’s somebody who’s — kinda like some churches where I live, where the doors are open but the mind is closed — I just make a quick joke like, “Oh, as best I can and not cheaply.” And get a laugh and go on with it.
But if they’re really asking and caring, “How can you do that kind of work?” Well, the journey of a million miles starts with a single step. First, we need to find our motivation. Is it a good thing to protect people from government? Is it a good thing to make sure that government’s honest? That government’s fair? That everything’s being done right?
Is it a good thing to protect people from government? Is it a good thing to make sure that government’s honest? That government’s fair? That everything’s being done right?
Also, especially for people who live where you do in Tennessee and where I do in Waco, the Bible is a fairly relevant document. And how you treat the least of these is maybe how you can expect to be treated. So what we let them do to the worst, the poorest, the most mentally ill, is how we can expect to be treated by a fair system and honest process, under the rule of law that applies to everyone equally. At least in theory, the way this whole gig got started, you know, the Massachusetts Bay Colony. That’s how I start that conversation if we’re going to have a good, listening dialogue.
HUMPHREYS: Right. I’ve started conversations with other private investigators at conferences where I’ve presented, and it’s funny how the conversation will start, you know they’re just trying to pick a fight. But the more you talk openly about what we do on the defense side, the more people become interested.
Iron Sharpens Iron
HUMPHREYS: Some guys I talk to are never going to get their head around working for the defense. I did have one guy in Idaho, his daughter’s a criminal defense lawyer, he’s a former police officer. And he said, “I told my daughter, ‘I can’t work for the defense, and I find it almost offensive that you do.’ And she said, ‘Dad, if y’all would stop screwing up so much, we wouldn’t have to do what we do.’”
GUINN: Old saying: Iron sharpens iron. If you get used to running over everybody all the time — we see it in athletics: if you’re in a weak district and play a bunch of soft ones, then you get in the playoffs and hit somebody good, you’re not ready for that. So the better the defense is, the better police and prosecutors are going to do.
When I was a prosecutor, I got to go to “baby prosecutor’s school,” not the official title, but everybody who’s been knows what I’m talking about. I sat on a patio in Austin having a beer with two or three other prosecutors. And I’m 24 years old, idealistic, barely starting to have a fully-formed prefrontal cortex. And I proudly proclaimed, “There’s no way I could ever be a criminal defense lawyer.” There’s a saying here at the Baptist Church in Idalou: People plan, God laughs. So here I am in Lubbock, Texas, a criminal defense lawyer.
GUINN: I think whether it’s a policeman, defense lawyer, or prosecutor, most of us want to feel like we’re doing a good thing, whether for a person or for society. Even some of the toughest cops I know, part of the reason they got the job and stayed in it was they wanted to feel like they were doing something good. If they’re a PI and retiring, they’re trying to find that motivation for something good.
I think whether it’s a policeman, defense lawyer, or prosecutor, most of us want to feel like we’re doing a good thing, whether for a person or for society.
Asking and Listening
GUINN: So part of what we do is to understand that person we’re representing, try to put their skin on. That starts in a mitigation aspect of a case, just re-chasing their life. I’m sure you’ve had that ghost walk over your grave, where you’re talking to somebody and you say, “Tell me about your life, tell me about your childhood. Anything terrible or eventful?” They say “no.” And as you listen to what they experienced at 2, 4, 5, 10, 13, 18 — is horrific.
And this is where investigators, I think more than anywhere else, are so incredibly valuable. You’re great listeners. You actually hear people. And I don’t mean that simply in the auditory sense of nodding your head while the words pour out of their mouth and you play a vocabulary game. No, you get them. Or at least, they come away with that impression.
And this is where investigators, I think more than anywhere else, are so incredibly valuable. You’re great listeners. You actually hear people.
GUINN: And that’s the beginning of thinking, “This person might care. I might be able to trust them. They might try for me, no matter how it works out.” Whether it’s a character witness, a fact witness, or it’s my own client, investigators are better listeners and are often better at asking open-ended questions, and being patient for a response. For an investigator talking to somebody in front of their house or their trailer at 6:30 in the evening when they got off work, just making small talk, trying to learn something, they do like you’re doing right now. They knowingly nod their head with that great facial expression, and your kind eyes. And it makes people want to keep talking to you.
Lawyers, especially litigators, are terrible at that. We reflexively cross-examine. We suck at poker when we’re talking to people, because we’re not listening. And investigators are so much better at listening, letting people be comfortable, and letting the conversation just come on out.
HUMPHREYS: At the end of the day, it’s the listening that counts.
I had a case that just wrapped up last week, worked on it with an appointed lawyer here in Tennessee. I think we worked on it for about a year and a half. The State was seeking 1st degree murder, basically a life sentence. The jury found the kid guilty of reckless homicide, and the range of punishment is 2-12 years. I think that was the right result, given the facts of the case. I feel proud that I played a part in that. And I think one of the things we as investigators and you as attorneys do is we try to make sure that IF the guy we’re representing did the thing, let’s keep the State from overreaching.
GUINN: Absolutely. And sometimes, some of our facts are people who are not very nice. And some people you’re never gonna please. But sometimes, if they see people worked hard, and did their best, and cared and fought for them, they come away with maybe a little more trust in this American judicial system. That’s good for the whole.
If [clients] see people worked hard, and did their best, and cared and fought for them, they come away with maybe a little more trust in this American judicial system. That’s good for the whole.
Charles Chambers does criminal defense here in Lubbock, does a lot of court-appointed defense because he wants to. There was a case where the State knew they had a winner. It’s a lay-down. They were picking on him. The guy wasn’t real smart. He didn’t want to plea, turned down a pretty good deal. His family thought he made a mistake. They were right. One thing they weren’t ready for was the effort and effectiveness of Mr. Chambers. It was an African –American family, and when the jury came back with its final verdict on sentencing, the young man’s father, as he left the courtroom, was shaking his head saying “I’ve never seen nothing like that,” with tears in his eyes. And what he meant was how good Mr. Chambers did for his client, and how stunningly good a Lubbock jury was to his son. The DAs got their conviction, the defendant got a fair trial and a fair sentence, and everybody came away with a little bit better perspective of what goes on. And it was healthy.
You know, we all like to spike the ball, easy win — big thunder and lightning “not guilty,” trashing the State’s offer. Those are the easy, obvious things to see. But for an investigator who listens to that person and finds that 5th grade teacher who thought he was the sweetest little boy if he just hadn’t such a drug-dealing dad and an abusive stripper mama, maybe he’d have had a dang chance. You’ve been in that conversation.
HUMPHREYS: No doubt. David, I’ve taken enough of your time. I cannot thank you enough for doing this. It’s helpful to have input from some of the smartest people I know, and you’re one of them. Thank you, Sir.
GUINN: Well you need to meet more people!
About our esteemed guest:
David M. Guinn Jr. is a partner at Hurley & Guinn. He has extensive experience representing citizens accused of criminal wrongdoing. He has successfully represented individuals in trial and appellate courts at both the federal and state level. Guinn earned both his undergraduate and law degrees from Baylor University. After law school, he spent three years as an assistant district attorney for Johnson and Somervell Counties.
Guinn is a member of the Texas Criminal Defense Lawyers Association, the National Association of Criminal Defense Lawyers, and the Texas Criminal Defense Lawyers Educational Institute. He frequently lectures other lawyers at seminars throughout the state on criminal defense strategies.