Green uses analogy to explain, among other things, why evidence sometimes gets suppressed and the need to defend everybody, regardless of the charge.

    As a noted attorney, Green is often asked to speak at seminars and lectures, something he enjoys doing. He was recently one of eight lawyers invited to speak at a conference of Hawaii State Judges. In addition, he has lectured for groups of public defenders,

Defense Attorney Michael Green says the U.S. Constitution applies to all citizens, even those accused of extreme offenses.

prosecuting attorney’s, as well as civic groups. When he does seminars, Green is always asked, “How can you defend people when you know they are guilty?” He usually relates a story that explains his position and its importance in the judicial process.

    Green talks of a hypothetical family that lives in a community with a high crime rate. The husband must leave on business and purchases a handgun for his wife. After all, crime is on the rise, and a lady was recently raped not far from the house. They have a son who does well in school and has aspirations to get into law enforcement or some other civil service position when he finishes school. The problem is, the community has an ordinance forbidding all firearms, even if duly registered.

    One evening, the police arrive, and storm through the doors with a search warrant. Upon investigation they find the gun, which means a mandatory offense for the mother, who because of her proximity to the weapon, is technically guilty of possession. In addition to the firearm, the police find a small bag of marijuana in the son’s dresser drawer, also a crime that dictates mandatory sentencing in this jurisdiction. He faces jail time and the ruination of his dreams.

    The family hires an attorney, who immediately asks to see the warrant. The lawyer looks at the paperwork and says, “Wait a minute. You live at 100 North Main Street, right? This warrant is for 100 South Main Street.” The cops went into the wrong house. The defense attorney presents his findings to the court, and gets the evidence of the gun and marijuana suppressed. The family walks away, no conviction.

    “I tell people that story and ask, how do you feel about that?” said Green.

    “Is it correct that the U.S. Constitution says you have the right to be free from unreasonable search and seizure in your house? Can the police just break down your door, if they have the wrong house?”

    While many in the audience agree to the right to suppress the gun in this instance, that attitude changes dramatically when Green gives the story an added twist. He asks, “What if the same gun had been used by a serial killer?” The attitudes change but the hypothetical question helps to bring the role of the defense into perspective and highlights a fundamental principle.

    “Every American citizen is protected by the Constitution,” said Green. “The same Constitution that applied to the family also applies to someone accused of a heinous crime.”

    Green concedes that some people in Hawaii, as well as many other areas, can be somewhat conservative in their view of this interpretation. The population of our island home continues to grow, with the City and County of Honolulu ranked 45^th of all U.S. cities. In addition, Hawai’i is home to 16 of the top 20 racially diverse communities in the nation, according to City-Data.com. But the numbers belie a “small town attitude,” where local folks share generations of collective opinions and values.

    “Hawai’i is truly a unique place, but, for the most part, people here believe strongly in the Constitution and want our rights preserved,” Green said. “The Constitution is for everybody.”

    The United States is one of five countries in the world that has a “trial by jury” system. People from the community are brought in to “decide where the truth lies,” as Green puts it. He sees the jury as a collective presence that sits between the power of the government and the citizens. Green says that if lawyers didn’t accept the responsibility to represent the accused, those with the least amount of money and political clout would suffer the greatest burden. But Green says that burden goes far beyond the poor and downtrodden.

    He quotes the expression, “Failure to defend the civil liberties of the least among us, imperils the liberties of all of us. It’s the defense’s duty to force the government to prove its case, conduct a fair investigation, and present a fair trial.”

    Green cites instances where people have been tried, convicted, and spent time behind bars, only to be exonerated by new evidence, such as DNA analysis. He likens the role of defense attorney to a “balancing act,” making sure everyone’s constitutional rights are followed, and insuring the government has to prove the accused guilty beyond a reasonable doubt.

    That balance is harder to obtain in this day in age, according to Green. More and more people are being exposed to crime, directly, or through family, friends, and acquaintances. This trend is prevalent in urban areas with a high crime rate, and is becoming more evident in Hawai’i. He feels it’s now less likely to find reasonable doubt in cases where it might have been easier found in the past. Jurors are getting tired of crime, and it seems this mindset means they’re more likely to convict. Green says when he first came to the Islands, defendants were more than likely found guilty of what used to be known as the “lesser included crime.” For instance, someone charged with murder would usually be convicted of manslaughter. And a robbery defendant would usually be convicted of theft. Not anymore. In the past few years, there has been a trend of conviction for the main underlying crime. It’s a sign of the community growing weary of reading the escalating offenses in the newspaper’s “police beat” section.

    “Today, jurors kind of believe, “You know, if he didn’t do this one, he must have done something else. Everyday people pick up the paper or see the news and read about someone dong something terrible. It’s a syndrome that is happening here as well as communities on the mainland. Jurors are just more inclined to convict. Before, when they brought in a perspective jury pool, maybe 15 % of the candidates had a crime committed against them. Usually they were lesser crimes—purse snatching, car theft. Now it’s more common to have perspective jurors who have family members who’ve been raped, beaten badly—major crimes. I see a greater percentage of potential jurors who’ve experienced things like that.”

    His willingness to accept the role of defense comes largely from a strong belief in the judicial rights of everyone, good or bad. But Green’s passion to defend the Constitutional right of due process also places him in the midst of a very real human drama of pain and violence, something he’s been exposed to since he began to practice law. He doesn’t think he’s anyone special, but he concedes that his job is not for everyone.

    “It takes a different kind of person to spend day after day dealing with the kind of situations we are exposed to. When people who are in pain surround your life, it can take a toll. Families are looking at their kids going to prison for life. I did 12 capital cases, where in those days, it was either the electric chair or hanging. That stays with you, even when you leave the office. Everyone concerned feels pain.”

    Green admits to getting high exposure on television, and it’s calculated. He says it’s not to draw attention to himself, but rather help his client get a fair trial. There’s often an avalanche of negative publicity before the case even goes to trial. Judges and potential jurors can be influenced. By speaking before the cameras, he hopes to at least show the other side of the story. Anyone watching the Six O’clock News is a potential juror, and Green sees media spots as a way to help his client get a fair trial. But years of practice have given him an immense understanding into the psychology of a trial-- who is thinking what. He has a good barometer of how the judge views individual cases, as well as the prosecution and the jury.

    Green says a good defense attorney needs to be realistic, and sometimes that means recommending prison time. He cites recent cases such as the trial of three men involved in an altercation after a cockfight, and the Clyde Arakawa case. Green says both cases should never have gone to trial. The defendant’s attorneys should have known the potential risk of a trial would possibly lead to lengthy prison sentences.

    “A lot of clients come in and expect the defense attorney to recommend probation,” said Green. “But, in some offenses, everyone involved in the case knows probation isn’t realistic, someone is going to do some time. In this instance, it’s a question of how much time the defendant gets. When the prosecution asks for a certain amount of time, it’s usually high. The defense has to be realistic. If he simply asks for probation, the judge will usually dismiss the recommendation and side with the prosecution.”

    In the cockfighting case, a man was beaten to death after a dispute. Five men were charged with murder and attempted murder. Green says the lawyers for two of the defendants asked for probation, while Green conceded the nature of the offense dictated incarceration. The latter two were convicted of murder, and will likely serve 25 years in prison. Green had his client’s charge reduced to an assault, and his client will serve four years.

    Green initially represented Arakawa, a 25-year veteran police officer who, after a drinking binge, ran a red light and plowed into another vehicle, killing 19-year-old Dana Ambrose. Green says he advised his client, “There has to be some closure here.” Arakawa eventually sought a new attorney. Within six months, the defense filed a lawsuit against the Ambrose’s for damage to his car, further adding to the family’s anguish.

    “He put that family through hell, he wasn’t going to win the case,” recalls Green. “And then the defense claimed that Arakawa’s liver was bigger than others and he could handle alcohol better. The defense obviously created hostility towards the defendant. Here’s a case where the attorney had a police veteran, and probably could have gotten five years, based on his service. Instead, he got the full 20 years. Unless the client forced these actions, frankly, I blame his lawyer. You have to have control of your client. You can either withdraw from the case, or convince the client that they have to listen to you. But when it reaches that stage, it’s on the attorney.”

    So, it comes back to the initial question. “How can you defend that person?” In his years of practice, Green has defended people from all facets of the human spectrum. He has represented gang leaders, politicians, the rich, the poor, those with influence as well as those on the fringes of our society. His decades in and out of the courtroom have produced a multitude of verdicts, both successes and failures. But Green stands by the constitutional burden of proof, and will do so as long as he is an attorney. No matter the nature of the crime, nor public opinion, the United States legal system guarantees a fair trial to its citizens. The prosecution and defense work within these legal parameters to present their cases, and a jury of twelve citizens meet to deliberate and reach a conclusion to the case. Did he or she do the crime? What were the circumstances? What happened on both sides? The jury ponders all these questions amidst a volume of evidence from both sides. They normally debate the case and reach a collective decision, “guilty or not guilty.” And our rule of law pretty much is confined to those choices. But why not declare someone innocent?

    “Juries never find a defendant “innocent,” Green said. They’ll decide on a verdict of not guilty. There is a distinction between innocence and a reasonable doubt. People can in fact be guilty, but still can be found not guilty because a reasonable doubt exists. If you had to prove your innocence, no one would be walking out of court.”