If You See the High Ground, Take It

 Posted on January 19, 2009 in Uncategorized

Prosecutor Ken Lammers has advice for young criminal lawyers:

I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are "the good guys", start on the other. Practice there not for 6 months – or even 2 years; practice there for at least five years – enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.

I don't think it's bad advice for everybody (lots of people might have no clear idea of how the system works, and might be leaning only gently toward one side), but for anyone who has a clear preference for one side or the other, it goes against several of my principles.

First, do the right thing right now. If you think the defense are the good guys, join the defense. If you think the government are the good guys, join the government. There's no telling whether you'll be alive even a year from now; wouldn't it be a shame to spend the last year of your life working against the good guys?

Second, what is in your heart is more important than what is in your brain. If you are leaning more than gently toward one side or the other of the criminal justice system, trust that feeling. You're supposed to be doing what you believe in doing. If you cynically work to keep people out of prison when your heart is for making society safer (or you cynically work to put people in prison when your heart is for making them free), you're doing a disservice to your own principles. You also may be depriving someone else of the opportunity to follow her own heart. As ex-cop ex-navy future lawyer Edintally comments on his blog, "The State can pick from an unending supply of youngsters who believe in the State mission."

Third, your duty to do right is a duty to your self. This does not translate to a duty to the system. If you need to justify not defrauding the court by calling it a duty to the court, then your moral compass needs calibrating. We must (for our own sakes) act ethically and morally; and we must do what we can to help our clients. Sometimes those duties clash (would you murder a witness to free a client, if you could do so without fear of retribution?); how we resolve those clashes is who we are.

To the degree that we think the system works to deliver justice (that is, to appropriately punish the culpable while not punishing the innocent), we should support that system. But the truth is that the system is severely broken, and we have no duty to perpetuate it or to refrain from pointing out that the emperor's backside is showing.

Ken writes,

Personally, my hope is that working both sides will lead a person tohave more loyalty to the system than a side. That's not to say I don'texpect people to play their part in the system to the fullest extent oftheir ability. The system doesn't work if they don't.

It might be better than all the others, but the system doesn't work, period. Even with zealous advocates on both sides, innocent people - that is, factually-innocent people - get convicted of crimes and sent to prison. No system that sends a single innocent person to prison deserves our loyalty. No system that sends a guilty person to prison for a day longer than necessary deserves our loyalty.

Let the prosecutors, cops, and judges try to maintain this broken system. Your duty to do right trumps your duty toward the system. We criminal-defense lawyers, at least, should be looking for ways to change it for the better or, failing that, to burn it down and start afresh.

Finally, never lose altitude unnecessarily. This is a trekkers' aphorism. When you come to a fork in the trail, one side of which appears to go uphill and the other side of which appears to go down, the uphill trail is almost invariably the correct one; take the downhill trail, and you'll wind up using lots of energy to make up the lost altitude.The criminal justice system is an arena for civilization's defining struggle. It's not the struggle between prosecutors and defense lawyers or between rich and poor or between black and white, victims and criminals or predators and prey. It's the struggle between freedom and safety.

Since humans first got together in communities, they have been giving up a freedom for safety; that's the exchange implicit in the social compact. There is a continuum between those who feel that we should be safer (and necessarily, though they might not realize it, less free) and those who feel that we should be freer (and necessarily, though they might not realize it, less safe); somewhere in the middle are those who think society has struck the proper balance between liberty and security. There are few anarchists because trading some liberty for safety is not inherently evil; even Benjamin Franklin left open the possibility that an exchange of unessential freedom for permanent safety might make sense.

If you're going to participate in civilization's defining struggle, it's best to know where you are on that continuum before you start to fight to shift the balance one way (toward safety, if you're a prosecutor) or the other (toward freedom, if you're a defense lawyer). If you know where you are and you follow Ken's advice and start out working against the side that you think is right, you're going to be trying to make up for that lost altitude later.