The Question: Seven Answers

 Posted on January 08,2010 in Uncategorized

Here is The Question: Why do you defend people who you know to be factually guilty?

The question is often phrased as "How..." or "How can you sleep at night when you..." but those demand smartass answers like "very well" or "on a pillowcase full of hundred-dollar bills."

Typically, the laypeople (in which group I include civil lawyers and prosecutors) asking the question don't understand the niceties of legal and factual guilt, so the question is usually "... people you know to be guilty," which demands the answer, "they aren't guilty till they're proven guilty," which is not smartass but will be seen as such by people who don't understand that "guilty" is a term of art.

The Question assumes something that is true only rarely, if ever: that the criminal-defense lawyer knows what happened. Some reject the premise. It's not the criminal-defense lawyer's job to decide whether his client is guilty or not. Even if a client swears to have done the deed, the lawyer can and should doubt-clients lie to us, and do so for the strangest reasons.

But, for purposes of this post, accept the premise.

Why does The Question matter? Criminal defense lawyers don't agonize over it-they just know. Most of the non-criminal-defense-lawyers asking the question will never, no matter how we answer, understand. For them, The Question is

almost always asked in a rhetorical, accusatory fashion, with inquirers never really wanting to know the exact approach, strategy or methodology involved in defending the criminally accused. Instead, they simply want to make a statement, essentially saying that they could never represent someone they believed was guilty, thereby indicting the criminal defense attorney for doing just that.

[John Contini.]

But there are folks who want to understand, and can understand, what drives criminal-defense lawyers to defend even those who they know have done really bad things.

I don't get The Question a lot. Maybe I need to get out more. But when I am asked The Question, I like to be as persuasive as I can be. Helping someone understand why it is we do what we do can improve the world by making people better jurors and less willing to blindly follow the government out of fear.

It's hard to know where the person asking the question is coming from. For some, the Sixth Amendment Answer is enough; for others (like Maricopa County's voters) the Constitution is an irrelevancy. For some, the Biblical Answer resonates; for others, it's a fairy tale.

So this post is an effort to categorize the various answers to The Question, with examples. I'll update it as time goes along, as a reference for those who follow after.

I. The Sixth Amendment Answer

We swear to uphold the U.S. Constitution. Part of that Constitution, the Sixth Amendment, requires that everyone accused of a crime-not just everyone who a good lawyer thinks deserves it-have effective representation.

You wouldn't expect a doctor (bound by the Hippocratic Oath) to decide whether to heal people based on their worthiness [Blonde Justice]; neither should you expect a criminal-defense lawyer (bound by the Sixth Amendment) to decide whether to defend people based on their worthiness.

"It's different," some might say, "because a doctor is healing disease while a criminal-defense lawyer is protecting people from justice."

II. The Flawed System Answer

Don't confuse what happens in court with moral judgment, [Scott Greenfield] or the law with justice. It's not about truth or sin or right and wrong. The law is a blunt instrument. It's about whether the government gets to put a human being in a box-probation, prison, or a coffin.

Cops lie [Scott Greenfield]. Prosecutors cheat. Juries screw up. Some laws should not exist, and other laws provide punishments that are grossly out of proportion. It's a flawed human system, in which the mistaken judgments of flawed human beings either balance out (in which case an approximation of justice can result) or compound (in which case gross misjustice can result).

If I take it upon me to decide who is guilty, it's almost certain that sometimes my judgment would be wrong [Rick Horowitz]. If I'm going to contribute my own mistaken judgments, it's not going to be in favor of someone losing his freedom or his life-there are plenty of 25-year-old pukes who think they were born wise and are more than willing to do that.III. The Biblical Answer

I'm not big on organized religion of any sort, and Christianity and I have long since parted ways, but Jesus set the example-when called on to judge the woman caught "in the very act" of a capital offense, he defended her. Successfully. [See also John Contini's How Can a Christian Lawyer Defend the Guilty, which-oddly, to my mind-omits that tale.] Why did he defend someone whom he knew to be factually guilty?

IV. The Compassionate Answer

It's as simple as this: I care about the person I know. In most cases, the complainant is an abstraction to me. His victimization is an abstraction. My client, on the other hand, is very human and very real. It is his tears I see, his hand I hold and his mother I console. I know my clients like no one else in the system. I empathize with my clients the way everyone else in the system empathizes with the complainants.

[David Feige.]

I don't like hurting people. Is that so hard to understand? When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I can't know whether anyone is truly guilty or innocent, or what they deserve, and frankly, I don't care. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.

[Danielle Sucher, Legal Agility.]

Without compassion nobody will ever understand why we defend; with compassion nobody will ever need to ask. [Me.]

V. The Cog-in-the-Machine Answer

Any approximation of justice that the system creates comes about only because there are people fighting on both sides. If I walked away from one case because I thought my client had done wrong, the government would be able to do whatever it wanted to that client-which almost always (in serious cases) would mean punishment more severe than appropriate, even for really guilty people. Other lawyers would walk away from their cases, and the government would be able to do whatever it wanted to them too.

More than that, though, if we make things easier for the government on the cases where we think our clients did wrong, it frees the government to concentrate its resources on imprisoning and killing innocent people.

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.

[Jeff Gamso.]

VI. The John Wayne Answer

When a person comes to me for a defense, with the vast power of the government arrayed against him, no matter what he did before he is the underdog now. I stand up for the underdog. I protect the weak from the strong. Every man needs a code to live by, and that is part of mine.

VII. The Martin Luther Answer

Criminal defense is a way of looking at the world [Jeff Gamso]. We are criminal-defense lawyers. Defending people is what we do-how could we not? [Jamie Spencer, channeling me.] We defend. No more. It is our bond [Jeff Gamso again]. There are some men in this world who were born to do our unpleasant jobs for us [John Wesley Hall]; those men (and women) are we.

In other words, wir können nicht anders.