By Jim Smilie
Alexandria attorney J. Michael “Mike” Small offered insight into how defense attorneys think when handling murder trials during a presentation Tuesday to members of the Rotary Club of Alexandria in Convention Hall.
Small, 77, specializes in criminal defense, including white collar crime and public corruption cases, murder cases and death penalty cases. Over the years, he has represented a number of high-profile candidates, including former Louisiana Governor Edwin Edwards. Small represented Edwards in a federal trial when Edwards faced a 43-count indictment including charges of conspiracy, mail and wire fraud, and witness tampering. Edwards was ultimately found not guilty on all counts in that case.
“I find the murder cases to be the most interesting,” Small said. “The more lucrative side of my business are the white collar crimes. But I find it more interesting to debate if someone acted in self defense in a homicide case than if the value of collateral was inflated and resulted in bank fraud. I would rather have a who-done-it than a paper case.”
For nearly three decades, Small specialized in representing clients facing the death penalty. “I am unalterably opposed to the death penalty,” Small said. “To me, winning a death penalty case means not getting the death penalty.”
Small noted that with only one exception, each of the clients he represented in death penalty cases was guilty of the crime. “In 99 percent of the death penalty cases there was overwhelming guilt.” Knowing that, Small said he focused on convincing the jury to spare the defendant’s life, not trying to convince them the person wasn’t guilty. “If an attorney is smart, the first thing they will do is tell the jury this client is guilty, and they need to be punished. But we need to talk about their life,” he said.
One of the key things a defense attorney has to decide, especially in a murder case, is whether to have their client testify. “It’s risky not to let a defendant testify. Juries want to hear from the defendant,” Small said. But there are times when Small felt doing that could result in more harm than good.
To illustrate his point, Small discussed a recent case he handled in Evangeline Parish in which his client was accused of murder. The defendant argued he acted in self-defense. Small explained there was no doubt that his client shot and killed a man, but that the evidence clearly showed he acted in self-defense.
Typically, Small said, he would want the defendant to tell the jury their side of the story. But in this particular case, the defendant had issues in his past that Small feared would be brought up and harm his case. “I couldn’t say that my client has been a scoundrel in other parts of his life that have nothing to do with this case,” Small said. So, he chose not to call him as a witness. In fact, he didn’t call any witnesses at all.
“It was the first time in my career that I didn’t call a single witness,” Small said. He explained that under the law, in a self-defense case the prosecution has the burden to prove beyond any reasonable doubt that the incident was not self-defense.
In this case, Small said the homicide investigators did a very thorough job of documenting everything that happened. That included documenting that the deceased individual was armed with a loaded shotgun with the safety off, had methamphetamine in his system, and that his client never got out of his vehicle and actually fired through a closed car window. All things Small said supported self-defense.
Small knew all of those details based on discovery motions he filed before the trial. “If an attorney will get off their butt and file the motions you can get everything,” he said. So as the prosecution attorneys called their witnesses, Small was ready to let them make his case. “These weren’t defense witnesses, they were prosecution witnesses – but sometimes you couldn’t tell that,” Small said. Ultimately, he won the case.
When asked by a club member if Small could argue for a not guilty verdict even if he knew his client had committed a crime, Small said defense attorneys can make that argument.
“Most of the people who retained me maintained their innocence,” Small said. “After 50 years, I am convinced there are probably more innocent people in prison than there are guilty people who got off.”