A(n Ex-)Prosecutor's Principles

 Posted on July 26,2010 in Uncategorized

Quoth Vincent Bugliosi, in a comment posted by John Kindley:

‘Everyone is entitled to be represented by an attorney' is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect's guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don't care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.'That would be idealism. I, too, would represent a defendant - even one guilty of murder - if I were the only lawyer available, because the right to counsel is a sacred right in our society and much more important than any personal predilection I might have. But this type of situation simply does not exist in a city like Los Angeles, where 35,000 lawyers stumble over each other's feet for cases. So I am free to follow my inclination.

Bugliosi's philosophy is part ethical retardation and part not-spending-enough-time-in-the-company-of-good-criminal-defense-lawyers.First, to the ethics of it. Summing up Bugliosi's idea of a principled position: "if someone will be directly and obviously harmed by my failure to act, I will act; otherwise I am free to follow my inclination." In other words, an it harm none do as ye will, with no thought given to how the conduct ramifies.

I peg Bugliosi, generously, at Stage Four of Kohlberg's stages of ethical reasoning, which is perfectly adequate for getting by in society, but which leaves something to be desired for a criminal-defense lawyer (or, for that matter, a prosecutor). A more developed ethical mind would consider what the effect would be if everyone followed the same inclination.

It's embarrassing enough that Bugliosi is so eager to share his own ethics, but he is also keen on interpreting the ethics of others. The problem is that when someone at one stage tries to understand the motivations of someone at a higher stage, it's like a Flatlander trying to describe a sphere.

Now to second part. Conscientious criminal-defense lawyers abhor the courts' low standards for "effective" representation of counsel. The representation that passes constitutional muster does not satisfy the high end of the bar. For them, saying "if I don't take this case, it's okay because someone else will" is not good enough; people get screwed when they have inadequate representation just as badly as (or worse than) they would with no representation.

We criminal-defense lawyers need to feed our families, it's true, but that need does not inform our every decision (if it did, we would be vocal advocates of the war on drugs). Many of us are at leisure not to take every case that comes in the door. Yet the vast majority of us cheerfully (and sometimes pro bono) represent people who haven't convinced us of their innocence. (Why? Do we need to have this discussion again?) Public defenders offices are filled with lawyers who daily choose to represent the damned rather than make more money. Bugliosi's claim that their motivation in doing so is ambition is nonsense. If he spent more time in the company of criminal-defense lawyers (other than across the courtroom from them), he might better understand their motivation.

Bugliosi is free to follow his inclination, sure. So are you. But don't pretend that you're an idealist just because you would, in some fictive world, step up to represent a guy whom nobody else will represent. That sounds good in theory, but you'll never get to, because the criminal-defense lawyers will get there first. And don't pretend to know what the hell you're talking about when you're talking about other people's ideals.

(Here's more of Bugliosi's philosophy, quoted by Kindley at People v. State:

I simply have no motivation whatsoever to knock myself out working a hundred hours a week, as I frequently do, trying to figure out a way to get some murderer off....In a nutshell, although I've never been a law-and-order fanatic, I do believe that those who have committed serious crimes should be severely punished, and I do not want to be in a position of actively seeking to thwart this natural justice.

Hey, who wants to thwart natural justice, right?

I suspect that this is part of Bugliosi's problem conceptualizing the principle involved: he sees the criminal justice system as an instrument of "natural justice"-another Stage-Four position, by the way.)