Friday, November 27, 2009

Who We Are And What We Do - Part II

For any of you daft enough to have been following the back and forth, especially with John Kindley, over what criminal defense is, a debate that's been going on, one way and another for nearly a week now, in the posts and comments on Our Forward Movement, Simple Justice, People v. State, Probable Cause, and a recent post here, my latest response is longer than the comments section to this blog will allow. So I'm publishing it this way. It's a comment response, but I'm editing some to try and make it of some free-standing value.

I don't think any of the lawyers who've weighed in here would willingly do less than what they can to get the client off. All seem committed to actually doing the work of criminal defense when called upon. Good. That gets halfway to the point I'm making. (I'm speaking only for me. Others can and do speak for themselves, and while I have some idea of those with whom I share a general agreement about things, probably none of us view things identically. Anyone who's so inclined is welcome to weigh in on this again. But if you're burned out, I understand.)

Anyway, acting for the client is half the point, but only half. The other half isn't about whether you'll do a good job on a case, it's about the nature of criminal defense. It has no qualifier. There's no "even if" about working to get those sleazy Luzerne County judges off, no "since they're my clients." (They aren't, I'm hypothesizing.) To speak that way is to lay out an ambivalence in language (if not thoughts, but all I can go from is the words) that doesn't work in the business. If you represent them, of you even look at their case from the perspective of a criminal defense lawyer, you have to see it exclusively and wholly from the perspective that says, "Of course they did nothing wrong/nothing criminal/nothing whatever that merits even a slap on the wrist." You've got not just to work the case but to believe in it whole hog.

The thing is that being a criminal defense lawyer isn't the same as defending people charged with or convicted of crimes. It's a way of looking at the world.

I don't doubt for a moment that the role (and maybe it's that I don't view it as a "job" but as a calling) serves a higher good than just the client's interest. I think there's nothing nobler in the law, and little nobler outside it, than to advocate for and serve the criminally accused and the criminally convicted. Unlike Scott, I have yet to find the category of person I won't willingly represent (the Bernie Madoff's of the world might be it, but they've never come knocking). When I say that I represent _______, I'm proud to be able to say it. And to mean it.

That IS the higher purpose. To stand beside the reviled. To say here I am. You only get to him through me. I am the bulwark against the system and against the power of the government. If there's justice at the end, it's incidental, and I'm not working for it. (And, by the way, opposing injustice - whatever that might be - isn't the same as pursuing justice - whatever that might be.)

Sure, I do that within what we call the "criminal justice system." That system is supposed to be a means of effecting "Justice" as a Platonic Ideal or Form, but if the system is working toward that end, I'm not. I'm working toward what I can do for my client.

Look, insofar as some of us are arguing about whether "Justice" defined as "X" is part of what criminal lawyers work toward while others say that "Justice" defined as "Y" is not, we're simply having two separate discussions on the same page.

But if the would-be lawyer whose post started all this sees criminal defense (or law in general) as requiring a specially calibrated "moral compass" (her term) and imagines that in representing criminals she can try to obtain punishments that also rehabilitate, she's aiming at the wrong business. Don't want to be a mob lawyer? Fine. Become a DUI specialist or do nothing but capital work. But neither requires (or done well allows) a peculiar moral perspective or an openness to repairing the client. If that's what she wants/thinks/feels/understands ABOUT THE SORT OF LAW SHE'S DECIDED SHE WANTS TO DO, criminal defense, and probably law in general, is the wrong business for her.

This isn't Perry Mason. We mostly don't represent the erroneously charged. And frankly, those of us who've been at it for a while would mostly rather not. But aside from the preference, questions of guilt (whether we're speaking factually, legally, or morally) are no more than problems to be dealt with as part of the representation. It is irrelevant except insofar as it poses a problem.

Anyone who finds those positions other than incompatible with this work makes me nervous. My concern is what seems to be a mixing (not a mixing up, but a mixing) of two concepts of "justice." I've tried to explain that I don't think criminal defense is about either. Nor is it, particularly, about fighting injustice most of the time (which isn't, in any case, advocating justice).

What we do is both simpler and maybe nobler than seeking justice (whatever that is). IN any case, it's different from seeking justice. Maybe the words are just too abstract. Maybe what we need is to echo the philosophy class demand for defining your terms.

I mean all of this, but it's little more than eloquent (if that) BS. I have discovered that I am a criminal defense lawyer. That's me. To my toenails. When I was working for the ACLU and basically out of the criminal defense business, I was still a criminal defense lawyer. I can be no other, and maybe that's why (and how) I view things in these stark terms. But if it's what you are, there's no give in it, no ambiguity.

I enjoy the debate, but I'm passionate about the thing. It's not something I do. It's what I am. Can one do criminal defense without that passion and single-minded commitment? Sure. But those who do are not criminal defense lawyers. There's a difference.

This is rambling (even more than usual for me) and repetitive. I apologize for that. I'm not saying that you have to use my language to do criminal defense or be a criminal defense lawyer. You don't have to think about these things at all, let alone think or talk about them my way. But I am saying that the goal of criminal defense is achieving the interest of the criminally accused or convicted. That's not negotiable.

If your goal is "justice" (whatever that means) RATHER THAN the interest of the client - even if it happens that they overlap - then you may be defending a criminal but you're not doing criminal defense. And you probably shouldn't. If you're defining "justice" to mean "the interest of the client," then there's not even an issue. But if by "justice" you mean something like "a correct result in a neutral universe," then
  1. I don't know what they hell you're talking about.
  2. It's beyond my understanding - and certainly beyond any sort of agreement among people - what that result would be.
  3. It's not what a criminal defense lawyer seeks.
It may be the goal of the criminal justice system (though I'm far from convinced of that). It may be the hope of most members of our society (though I flat out don't believe that). It may be social good (though if we can't agree that feeding the poor and ensuring the availability of medical care to all is a social good, I don't imagine that we could even conceptualize any agreement about what would be a correct result in a criminal trial - at least where the defendant is not factually innocent). And whether you see it as a goal separate from, in addition to, or alternative to obtaining the result that will make the client happy, it's not a proper goal for us.

Charged by her father, King Lear, with the demand to issue hyperbolic statements of her love, Cordelia cannot.
Unhappy that I am, I cannot heave
My heart into my mouth: I love your majesty
According to my bond; nor more nor less.
Her simple eloquence speaks truth, though it's a truth Lear cannot/ will not hear. "Bond" in this case is obligation, but it's far more than mere obligation. Cordelia's word is that she loves unconditionally and totally. It's her bond not just to her King and her father but to the very nature of the bond between daughter and father. It's a legal, cultural, religious bond. It's a demand from God and from the heart. And it is who Cordelia was. Nor more nor less.

And so it is for criminal defense lawyers. We defend. No more. It is our bond.

And as Cordelia's love is both noble and ultimately (albeit too late) ennobling, so too our bond. Pure, simple, clear. We defend.

Nor more, nor less.


  1. Jeff,

    I appreciate your taking the time to write this follow up post. While I do think to a large extent we've been "having two separate discussions on the same page," I do think it's been a discussion worth having. I do think the formula "prosecutors seek justice; we defend" leaves out an important part of the reality, and that's why I've bothered to pursue the discussion.

    I have vastly less experience in criminal defense than you or Scott. Within my limited experience I've been fortunate or unfortunate to represent a disproportionate number of defendants who I felt were being treated unjustly by the State. There was the man with no prior criminal history who was contacted by an undercover officer on-line who told him "she" was 15 1/2 (6 months shy of the age of consent) and who wound up with a 10-yr mandatory minimum sentence in federal prison (and who if he'd been convicted for the same crime under state law might have had two years in prison at most). There was the defendant whose retrial for attempted murder should have been precluded by his prior acquittal for a directly connected murder acquittal and by collateral estoppel. There were the defendants charged with drug possession or drug dealing whose offenses shouldn't be crimes at all.

    In short, I'm very cognizant of the injustice perpetrated at every turn by the State against defendants. Therefore, while part of the intent of the "formula" is to remind prosecutors that they should be seeking justice and not simply as many convictions and the harshest punishments they can get, in my experience they only occasionally really do. In the cases that have meant the most to me, I have felt myself squarely on the side of justice and the State squarely on the side of injustice. I don't want to implicitly give the State credit for "seeking justice" it doesn't deserve.

    I, like you, wouldn't have any qualms about zealously defending someone charged with a child sex crime, even if I thought they were guilty. I'm disgusted when I watch on TV those prison shows and they interview all manner of inmates who've committed God knows what and yet who express a desire to kill the child molesters in their midst as the lowest of the low.

    I, like you, think that what we do is the noblest profession in the law, if not the noblest profession anywhere. But why is that? To simply say that "we defend" doesn't say much at all.

    I find the mindset required of me as a criminal defense lawyer actually congenial to my mindset as a human being. As I human being, I'm a philosophical anarchist, a Christian, a borderline pacifist. There are those people who call forth a contrary impulse in me, like those two sleazy judges in PA, bad cops, lying prosecutors, who I'd like to see get what's coming to them. I've been fortunate (and I realize this is tied to my relative lack of experience) to not have represented many if any who if I were sitting on a jury would call forth that contrary impulse. But I am confident that if I was called upon to defend such a person I would without reservation fulfil my responsibilites as a criminal defense attorney, which again are congenial to my broader outlook on life.

  2. Let me just add that I see in my comment above I didn't address a couple particularly good points you made, specifically: that to stand beside and defend the reviled IS the higher purpose of criminal defense; and that opposing injustice isn't the same as pursuing justice.

    I think they're very good points with which I basically concur, and for me to wrangle over them would be to wrangle over a word -- "Justice" -- which is a very tough word indeed.

  3. Kindley, how many words must you murder? We defend. Get it or get out.

  4. Well said! Definitely better than I said it, I think. (And I already took another stab at it tonight before I saw this posting.)

    I believe (as you suggest you are unsure) that when we do what you said, there is a greater chance that justice -- the kind the others have been writing about wanting -- will be done.

    But it's kind of like the old story about aiming at getting rich. If you AIM to get rich, you're likely to be disappointed. The old saw "do what you love, the money will follow" is not always true, but my point is that our goal is not "justice." Our goal is to defend our clients. Period. I believe that if, unconcerned about doing justice ourselves, we hew to our goal, there's a better chance justice will be done.