Who We Are And What We Do

It all began with this post by a self-described "aspiring criminal defense attorney." (Actually, it all began with the Word, or the Big Bang, or more recently with the invention of the internet by someone other than Al Gore, but the aspirant is a useful starting place for this.)

She was grappling with the question of how one defends guilty people. Her public grappling, and the quasi-conclusions she seemed to reach, demonstrated a fundamental lack of understanding regarding just what criminal defense lawyers do. Scott Greenfield, as is his wont when confronted with ignorant-and-proud-to-show-it, took the young blogger to task both for not knowing better and for publicly proclaiming her lack of understanding.

Scott gets more comments in an hour than I do in a month (of course, people actually read his blawg), and his piece set off a firestorm among the commentariat. He posted Sunday morning, and it's still going strong nearing noon on Tuesday. And, as these things do, he inspired others.

So Rick Horowitz offered his own eloquent take on the role of defense counsel and the presumption of innocence and their importance to the whole idea of criminal justice. And John Kindley weighs in today with his own take on justice and what she said and what Scott said.

Amidst all of this, there seems to be a general sense that when she grows up, this blogger in search of an excuse for the job she hopes to have may prove to be a find criminal defense lawyer. It's possible, I suppose. But it seems far more likely she'll be a fine PI lawyer or prosecutor. Better still, she should probably look for a different line of work. It's a multi-part problem.

First, of course, she really doesn't understand what we criminal defense lawyers do.

She wrote:

[A]n attorney’s ultimate goal must be to seek justice and not to simply win.

That's not just wrong. It's absolutely, fundamentally, incontrovertably wrong. Prosecutors are supposed to seek justice. Defense counsel are supposed to defend. No more than that. Scott said it in a comment.

The fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law. Our duty is not to "do justice," but to defend. In contrast, the duty of a prosecutor is not to prosecute, but to "do justice." The duties are not opposite or co-terminus.

The distinction is that our obligation is to discredit a witness, a fact, an assertion, evidence, whatever is presented against our client, if we can within the bounds of the law, even though we know (or may believe we know) it to be truthful or accurate. We will present any viable defense, regardless of our personal feelings about its true merit. While we will never knowingly present false testimony, we will use true testimony to whatever benefit we can for our client.

Our function is to defend our client, no matter how horrific the crime or evil the defendant. Our function is to use whatever tools are available under the law to obtain an acquittal, dismissal or the best possible outcome, whether based upon fact or law, whether capitalizing on a tactical error by the prosecution or advantage offered the defense. Factual guilt plays no role whatsoever in our duty to zealously defend our client. There is never a moral dilemma once a lawyer assumes the duty to defend. Our function is not to judge, or impose our sensibilities or morality, but to defend.

Justice White explained it in a separate opinion in United States v. Wade,

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

The aspirant doesn't get it. It's not the job she aspires to.

Of course, it's possible that, having been told this is what criminal defense lawyers do, she'll think she'd like to do that. But I doubt it. That's because of the second thing.

She wondered (this was, after all, the genesis of her post) how criminal defense lawyers can be moral and ethical and still defend, you know, criminals. Her conclusion, that we could help courts and prosecutors find effective ways of rehabilitating our clients, is so wide of what we do (or can or should do) that it's a disqualifier right there.

We are counselors at law, not counselors at life. Of course, we do at times urge treatment for clients, but as criminal defense lawyers, we urge it's because it's part of a good defense, not because it's what the client "needs." We're not competent to be life counselors and the better of us are smart enough to know it. She wants to seek justice and wants to rehabilitate. Criminal defense is not for her. Nor, perhaps, is law, or at least her conception of it.

That's the third point. Here's her concluding paragraph.

I have not begun practicing law yet. And so it’s fair to say this article is written from a somewhat naïve and idealistic perspective. However, I believe it is important for “rookie” attorneys to adjust their moral compass at the outset of their career as opposed to when we are in the trenches of a moral dilemma.

I've had moral dilemmas as a criminal defense lawyer. I've had them as a parent. I've had them as a citizen. I've had them as a human being. I've yet to find that the solution to a moral dilemma is to "adjust my moral compass." One sets it for honesty and integrity, then goes forward.

But that's not her plan. That's not where she thinks a lawyer's "moral compass" may point. She thinks that before she actually does legal work, she must adopt the morals of a lawyer which are something, er, other than moral.

So let me offer one answer to that cocktail party question:

I defend people. Some are factually guilty. Some are not. None is legally guilty until that's been decided by a judge or jury. I am neither. I'm an advocate.

I stand up for my clients because someone should. I hold the government's feet to the fire because someone must. To do those things only for those I believe to be innocent (and who am I to judge?) is to say that those believed guilty, truly or falsely, deserve nothing and no one.

In my world, that's not so. My world is not so cruel. My world does not so parse. And my world does not predetermine.

Unchecked, the government will abuse the innocent as readily as the guilty. Unchecked, all distinction except power fades. The guilty as much as the innocent, perhaps more, need and deserve an advocate. We are all, as Sister Helen Prejean likes to remind us, better than the worst things we've done.

To deny one is to deny all.