Sunday, April 22, 2012

Who We Are And What We Do Yet Again

There's death penalty news to discuss at length:
There are developments in other cases:
  • George Will says LWOP for kids is always wrong.*
  • Judge Kimba Wood dismisses the prosecution of Julian Heicklen for exercising his first amendment rights passing out leaflets telling people that jurors have both the power and the constitutional right to refuse to convict criminal defendants of laws they believe unjust (opinion here).
  • Tarek Mehanna is sentenced to serve 17 years in prison for exercising his first amendment rights aiding terrorists for arguing that killing innocent civilians is a bad idea and translating a tract about jihad because he did those things with an impure heart.
Those are all important things, things worth discussing at length.
And then there's Trayvon Martin and George Zimmerman.  Which is masses of outrage fueled by near total lack of information except that Martin is dead and Zimmerman shot him. Which tells us nothing about why or what the circumstances, physical and psychological, were.
Of course, there's plenty of rumor and innuendo and media exploitation.  But none of us actually know anything.
Someone on NPR the other day said that we won't know what happened until the jury returns its verdict, but that's wrong, too.  First, of course, there may never be a jury verdict. The charges may be dismissed. Zimmerman might plead to something. The next tsunami might make it all moot.  (There are other possibilities, too, legal and otherwise.) But even if there is a verdict, that won't tell us what happened. It will tell us what the jury chose to believe or not to believe beyond a reasonable doubt.  Which may or may not have a clear relationship to what occurred that night.
And then there's George Zimmerman's apology. Did he mean it?  Who knows? Scott Greenfield gave as good an explanation as anyone of why he likely did it and why it made sense strategically.  Beyond that, really, who cares?
The answer, it turns out, is that a whole lot of people do.  Here's what one of them said.
. . . First, I think it was crafted and, frankly, I have disdain for a lawyer who takes this tactic (even if it is a good one and helps his client). It's completely self-serving and disgraceful and hurtful to the parents. They don't want to hear that he's sorry for the loss of their son, they want to hear that he is sorry for murdering their son.
. . .
The other thing that REALLY ticks me off about this is the defense line of questioning "do you have any evidence to contradict" Zimmerman's version? Of course not you a$wipes, Zimmerman killed the other evidence by shooting Trayvon dead. It is such a mean-spirited line of questioning that has little to do with justice and more to do with getting their client off.
There is a right way to do criminal defense and a wrong way (ethically speaking). This case and the Casey Anthony case are prime examples of the wrong way IMHO. . . .
That the author of those words (and I haven't taken them out of context; the ellipses are omissions of things wholly irrelevant here), is a lawyer (albeit not a criminal defense lawyer) is a total embarrassment to the legal profession.  Because he has no idea what we do or how it works.
I'm not talking a sleazebag like the Fish.  Or like David Martin (here, for instance) who first convinced himself, before trial, that his probably innocent client was guilty and then chose to share that insight with the world so we could all join him in feeling good about his client's execution.  There are bad lawyers out there.  Grossly unethical ones.  Ones who turn on their clients or sleep through their trials or sell them out.  Ones too lazy to bother or just in it to gauge a buck and who gives a shit.  They're a problem, but a different sort.
This guy, the one who wrote that screed I quoted above.  I have no reason to think he's like that.  He may be a fine person and a committed advocate for his clients.  But he's completely missed the point of his legal education.
Because he thinks that criminal defense lawyers aren't doing their job properly, they're doing it the "wrong way" when their work "has little to do with justice and more to do with getting their client off."
Good god.
We've been down this path before, with the would-be criminal defense lawyer who figured her moral compass needed to be switched from moral to sleazeoid before entering her chosen profession.  (I hope she reconsidered after the firestorm of invective against her inanity, though I don't know.)  But she, at least, wasn't a lawyer.  This guy is.  And 
And if he doesn't, I figure it's probably necessary to lay it out one more time.
We can't lie.
We can't encourage anyone else to lie.
We can't destroy evidence.
But we must, within the ethical rules of the profession, do what we can to get the best possible result for the client - which means, if it's possible, getting the client off.
Even if the client is factually guilty.
Which, of course, we can never really know.
And which doesn't matter to us.
Our job is to defend.
It is emphatically not to seek justice unless justice is defined as "trying to get even guilty clients off," which is a weirdly unlikely definition of the term.
Beyond that, the right way to do criminal defense is to bust your ass working for whatever's in the client's best interest.  
Even if it pisses off the family of person who shouldn't have been killed.
And even if it's mean spirited.
And even if it's not nice.
And even if the client is guilty.

*He wrote, in a paragraph too good not to quote in full:
Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner's "potential to attain a mature understanding of his own humanity." Which seems, in a word -- actually, three words -- "cruel and unusual."


  1. I of course agree with everything you've written, but just had to quibble over the j-word again over at my blog. Couldn't help myself.

  2. "And even if the client is guilty."

    Something which, it seems, is impossible for Nancy Grace or those of her ilk to comprehend. Until I heard these harpies in action I had presumed that "The Furies" were mythological. Despite their various claims to legal expertise they:

    Don't understand the US legal system
    Don't know the law and
    Cannot understand evidence.

    Quite the triple threat, one and all.