Tuesday, November 24, 2009

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.


  1. But what do us old guys who've been doing this for years, for decades know?

  2. Scott,

    I'd read Jeff's post above before you suggested I do so. I generally read all of Jeff's posts. I'm not really interested in parsing or defending any further the post at issue by the "aspiring criminal defense attorney." It left a lot to be desired, and Jeff's criticisms are valid. She took on a big subject in a short space, which opened her to just these sorts of criticisms. To me it's not obvious from her short post that she thinks the morals of a criminal defense lawyer are other than moral, or that a criminal defense attorney should seek rehabilitation for her client over an acquittal or dismissal.

    But I will admit, and I don't do this as often as I should, that after rereading her post again it seems worse than before. The tone of it and the emphasis of it seems all wrong. It's confused and confusing, and it's not really clear what she's saying. She probably deserves the heat she's taken, and hopefully it will serve to open her eyes a bit. Maybe she really does think that if she comes to represent a client she believes is guilty she should automatically start considering how she can help the state rehabilitate him rather than how she can defend him. Maybe I just found it too hard to believe that, after graduating from law school, she would really think that.

    So the basic point of your post, that she should have thought a little harder before exposing her half-baked ruminations to public scrutiny, is well-taken.

    As for my own half-baked post on this subject, I stand by my basic point, although I will give it more thought: we shouldn't be too ready to concede to prosecutors, before a jury or the public, the moral high ground by stating that only prosecutors are properly concerned with "justice."

    BTW, please do tell how you came by "Simple Justice" as the name for your blog, so that myself and other don't continue to get the wrong idea.

  3. John, it's not a question of ceding moral high ground. Our adversarial system along with the rules and policies that drive it are the result of hundreds of years of experience. The ultimate aim of the system is justice, though that aim is not often realized.

    Experience taught our predecessors that the aim is most often realized when the government has, as a primary concern, the goal of "doing justice" AND the power of the government is simultaneously opposed, tested, if you will, by a vigorous defense.

    The government is thus charged with maintaing a focus on justice while defense attorneys are given a DIFFERENT charge. If the advocate for government focuses only on justice and the defense attorney focuses only on defending, our system, we have learned, will convict fewer innocent people.

    Unfortunately, a side effect is that some guilty people may go unpunished when this procedure is followed, also. But we, as a society, long ago decided that j was better that ten guilty people should go free than that one innocent person should be convicted.

    But an even more unfortunate situation has come from the increasing influence and control of the "justice" system by those who do not understand either the non-reciprocal distribution of duties outlined above or the reasons that lead to it. As we increasingly find prosecutors abandoning their duties because they confuse "doing justice" with winning and as we come to believe there is something ethically wrong with vigorously defending people "we know" (I say that with deliberate sarcasm) are guilty, fewer of the guilty may escape incarceration....but so, too, do fewer of the innocent, wrongly accused.

  4. Rick,

    I do get and fully embrace what we as criminal defense attorneys are saying when we emphasize that the government's proper focus is on justice while the defender's proper focus is not on justice but on defending. The formula is part and parcel of the asymmetry between the prosecution and defense that properly inheres in our criminal justice system, along with, as you explain in your own post on Scott's post, the presumption of innocence. The formula demands, for example, that a prosecutor not bring a particular criminal charge just because he can (or as leverage to secure a more punitive plea agreement than he otherwise might). It demands that his prosecutorial discretion be informed and constrained by the interests of justice.

    But recognizing and embracing this important formula does not exclude also recognizing and embracing, publicly, that we as criminal defense attorneys are guardians of "justice" too. As the "aspiring criminal defense attorney" wrote in her post, "justice is a multifaceted concept." There are certain "crimes" that shouldn't be crimes at all. By doing everything within our power, fair or foul, to get our "guilty" clients acquitted of such "crimes", we serve "justice." On the other hand, we may have a client who we ourselves would send up the river if we were sitting on the jury. But by putting that thought out of our heads, and putting the government to its proof, and/or getting evidence excluded because the government obtained it in a way that endangers the liberty of all, we serve "justice." Indeed, it is better that 100 guilty men go free than that one innocent person should be convicted. By adhering to that principle, we serve "justice."

  5. It's also worthwhile to examine a little closer the premises of the hypothetical defense of a client we "know" is guilty. How in the world do we "know" that? Do we only "know" that because the client told us, or because we are otherwise privy to information we wouldn't have access to apart from our representation? Or do we merely "think" he's guilty? God forbid we would have any moral qualms whatsoever about trying to get someone acquitted who's only "probably" guilty, or even who we personally think beyond a reasonable doubt is guilty. Whether the defendant is guilty beyond a reasonable doubt is for the jury to decide.

  6. John,

    Certainly the noun "justice" can signify multiple things. But that a word may have more than one meaning doesn't mean that they're all present all the time. Prosecutors seek justice. Defense counsel defend. Both prosecutors and defense counsel are part of the criminal justice system which occasionally may achieve something that some folks would call justice. But if that's a now-and-then by-product of my defending, it's absolutely not my purpose.

    Justice may be served, but I don't serve it. She is neither my mistress nor my master.

    Frankly, I'm more interested (when in the roll of defense counsel) in mercy than in justice. (And if you really want me to pursue the complementary disjunction between mercy and justice, I'll do that in another context than these comments and begin with the fifth book of The Faerie Queene, the Book of Sir Artegal, knight of justice.

    As for the question of when we know clients guilty, that discussion involves both the epistomological issue of the nature of knowledge and the definitional problem of what we mean by guilt. I've discussed the latter a bit in the context of Cameron Todd Willingham and may again one of these days. The former doesn't really seem appropriate to this blog.

  7. Jeff,

    In my role as a criminal defense attorney I am quite conscious of the injustices perpetrated by the State against defendants. By fighting against these "injustices" and attempted "injustices," I, almost by definition, am serving the cause of "justice." The confusion here seems to come from the common understanding of "justice" as implying some measure of punishment appropriate to a given criminal act. But in my role as criminal defense attorney, I am as bent on mercy as you. Mercy is justice. In my role as criminal defense attorney, I view all punishment as inherently negative, as unjust, as serving no good purpose. I kinda sorta have that view even outside of my role as a criminal defense attorney. In any event, I recognize that in my role as criminal defense attorney my job is not to seek some proper measure of justice/punishment, but to convince whoever's deciding my client's fate that "justice" entails as little harm to my client as possible. Because nobody really knows what anybody truly "deserves," there is nothing dishonest about such advocacy.

    But it's worth asking ourselves: how bent are we on mercy to the exclusion of justice in the more popular sense? Aren't we hoping that those two sick bastard judges in PA who sent those kids away to juvenile prison in return for kickbacks get what's coming to them? I am. I don't want them to be shown any more mercy than they showed those kids. So it seems that justice in the popular sense is still important to me as a human being. Therefore, I am not eager to say that in my role as a criminal defense attorney justice is no concern of mine, when I can truthfully say that it is. And from a public relations standpoint, why would we want to emphasize that it's not? Isn't our reputation bad enough?

  8. You keep mixing things that don't mix just because they hook back to the same phoneme.

    As a civilian, and assuming that the allegations against the PA judges are true, I'd like to castrate them and then throw them to lions. As a citizen who believes in more socially and constitutionally acceptable punishments, I'd like them to pay all their ill-gotten gains in restitution and fines and then be locked up for a good long time.

    But as their criminal defense lawyer (which I am not), I'd like them to get off. As a criminal defense lawyer, I will applaud if they do.

    I don't doubt for a moment (though I have no actual information) that OJ was (and is) factually guilty. As a criminal defense lawyer, my responses were to applaud the jury for understanding and applying the concept of reasonable doubt and to wonder whether there were useful lessons to take from the case.

    Justice simply is not something I typically seek or want in the roll of a criminal defense lawyer. What I want as a civilian is different. If you can't separate those things, then you really shouldn't be doing criminal law.

    I've done a ton of press over the years - especially when I was on the ACLU staff. I understand the importance of good PR. But lying about my job for the sake of PR isn't good PR. Making people understand the job is a whole lot better.

  9. I'm not mixing things up, and it's discouraging that you can't or refuse to understand after my previous comments that I fully understand that the role of a criminal defense attorney is to get the best result possible for the client, even if that meant getting those hypothetically guilty PA judges off scott-free. This whole thing strikes me as a word game, with you preferring to emphasize one aspect of the criminal defense lawyer's relationship to justice and me preferring to emphasize or at least recognize another aspect. By fighting against injustice, I fight for justice. Is that so hard to understand? Is it so hard to understand the "aspiring criminal defense attorney"'s effort to conceive of the job she aspires to as serving a higher good, as apart from the "hired gun" "mob lawyer" of the popular imagination? I didn't appreciate Scott's unwarranted insinuation that because I don't mouth his favored incantations maybe I shouldn't be a criminal defense lawyer, and I don't appreciate yours either.