How Erik Guenther gets juries to sympathize with clients accused of sexual assault
Published in 2007 Wisconsin Super Lawyers magazine
on November 16, 2007
Updated on August 13, 2015
“Agood lawyer,” says attorney Erik Guenther on the Hurley, Burish & Stanton Web site, “helps the jury see themselves in the client’s shoes.”
Guenther should know. In only five years he has built a successful law practice doing just that. Not an easy task when your clients are accused of sexual assault and child molestation.
“Sexual assault cases are probably worse than homicide cases in terms of carrying a stigma,” Guenther says. The presumption of innocence, he adds, is “kind of a courtroom myth. Because when a case is on the front page of the newspaper and you read that article, I don’t know anybody who thinks of the presumption of innocence.”
It is, in fact, this very presumption of guilt that Guenther uses to his advantage. “Getting a jury to see themselves in my client’s shoes in a sexual assault case is pretty easy once you get them to understand all it takes is somebody to point a finger at them,” he says.
Guenther has been dealing with negative press headlines since his first case out of law school. In 2002, Racine police raided a benefit concert for a nonprofit theater and cited more than 440 people for being an “inmate of a disorderly house with narcotics.” The cops called it a “rave,” due to the host’s use of electronic music, and journalists followed suit. But while undercover police arrested only four individuals for drugs, they issued citations to nearly everyone. Guenther read about the incident in the paper, contacted the ACLU-WI and handled the case pro bono.
“Picture going to a Dave Matthews or Rolling Stones concert in which law enforcement sees one person 10 rows up smoking a joint and then tries to ticket everyone,” Guenther says. “That’s basically what happened here.”
The case garnered wide media attention; as it wore on, news coverage improved.
“We got everybody’s citations dismissed, the police department to agree to never use the ordinance to shut down an advertised public event again and for the city to train its officers on Fourth Amendment issues,” Guenther says.
Not only did the case put Guenther on the map, it bolstered his belief in the presumption of innocence.
“It’s amazing how quickly someone’s life falls apart,” he says of his clients accused of sexual assault. “And this could be absent any corroborating evidence. The work I’m most proud of is work nobody reads about because we persuaded a prosecutor not to issue a charge.”
One former client whose sexual assault case was dropped describes Guenther’s work as meticulous. “The way things worked out, I give Erik credit,” says the client. “He was very caring, understanding.”
Guenther asks clients not to tell him if they’re guilty, but a few admit guilt anyway. Asked if that affects him, he pauses, then pauses again, then says, “Probably not. It’s harder when my client tells me they didn’t do it. Because the greatest fear you can have is that you lose a case with a factually innocent person.
He adds: “I tell clients: What no attorney can do, no matter how good, is take them back to the day before somebody accused them. But in my best work, they walk away. When I do that and know I’ve had a dramatic effect on somebody’s life, that means a lot to me. It’s definitely not just a job.”