Means and Ends

 Posted on May 30,2010 in Uncategorized

New second-career criminal-defense lawyer desperately in need of a mentor Joe Attorney writes:

[Reptile] is not a technique I could comfortably embrace. It suggests we should manipulate the more primitive emotions and parts of the brain to gain the desired result. To me it suggests that lawyers should worry more about ends than the means.

Joe is inspired by Stephanie West Allen, Jeffrey Schwartz, and Diane Wyzga's article in the American Society of Trial Consultants magazine, The Jury Expert. Allen et al. express the same qualm:

Human beings are ethical creatures. If you have ever been nagged by a guilty conscience, it is your sense of ethics speaking. That sense of unrest gives rise to wonder: what am I to do in this or that situation to move outward beyond selfishness to the larger ideas of community?And so we are saddened that a core of moral advocacy leading the profession may be threatened by a push toward snakes and fear. We are disappointed that when one of our legal brethren looks out into the venire panel they see neither humans nor allies but row upon row of triangle-headed reptiles.

I share Allen et al.'s concerns about the morality of Reptile. As I wrote in my response to their article (immediately below the article on the ASTC website), I think there are legitimate ethical and aesthetic concerns. In fact, I think that Reptile might be harmful to jurors' health.

At the end of my response, I asked the questions:

If you had a client who could benefit from your playing to jurors' fears would it matter whether the tactic were nasty or harmful to jurors? Or must the duty to the client transcend these particular ethical and aesthetic considerations?

I didn't discuss the questions further, but for me, at least absent the knowledge that Reptile is harmful to jurors, duty to client trumps personal qualms and squeamishness. If I can use Reptile to win my client's case, I would be breaching my duty to my client if I put my own interest (in being kind) ahead of his interest (in going free).

The adversary justice system is built on competing selfishnesses; without selfishness the system fails. A lawyer's decision to subsume his client's selfish desire (to walk free) to "the larger idea of community" would be surrender. As Cicero wrote, "It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal." We must do what the law allows to defend our clients, or withdraw.

A couple of years ago I wrote:

[S]uppose that the government passes a law saying that a criminal defendant might, by killing a person whom the government deems to have committed a crime, shorten his own sentence. Suppose further that the law provides that a killing in such circumstances is justified. Will you help a client legally murder a drug dealer? Or might you put your own ethics - your own "vision of yourself" - first and decline?

A lawyer does not have to do things that are personally repugnant to her. But the choice is not between doing what is legal to help the client, and not doing it; rather, it is between doing what is legal to help the client, and not representing the client.

So yes, Joe Lawyer, within certain limits (don't violate the law) lawyers not only should worry more about ends than means, but also must. If you can't comfortably embrace manipulating the most primitive parts of your audience's brains to get the desired result, you may be too fastidous to stand up for the accused in criminal court.