Thoughts on Nobility, Justice, and Frblniz

 Posted on December 01,2009 in Uncategorized

If you're the sort of person who needs anyone other than your dog to think you're noble, criminal defense is the wrong line of work for you. Still, it's nice that former criminal-defense lawyer and now prosecutor Ken Lammers thinks that the criminal-defense lawyer who takes the job of defending a "Reviled One," and does the best he can in defense of is noble. Especially since so many would disagree with Ken, and put us in the "reviled" category.

The reviled are not always wrong, and the most reviled are not necessarily the worst. Ken gives three examples of what he calls "deservedly reviled" people: "the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday." Their conduct is deservedly reviled, but are they? Who among us can truly say?

A necessary condition of justice (if we could hope to find it) would be that people in the same position be treated the same. But we humans can never know that people are in the same position. What minute genetic or environmental factor in the distant past set the neuronal pathways in the brain of the accused that led inexorably to the commission of the reviled act?

We're not talking about restorative justice here, nor about rehabilitation or deterrence or incapacitation. We're talking about retribution; the just exaction of retribution requires that we be able to truthfully say, "if I were the defendant, I would not have done what he did." Truthfully, not "honestly"-many say it and earnestly believe it because they suffer from a lack of knowledge or imagination.

We are our genes, our environment and of nothing else (or if we are in part something else, it is something else over which we have no control). If you were made of the same stuff as the defendant (down to the last base pair) but had lived in a different (even minutely different) environment, you might have done better than he; if you had lived in the same environment as the defendant (down to the last detail) but were differently constructed, you might have done better than he. But if you had his genes and shared his every experience, you would be he, and there is no way that you can know that you would do any differently than he did. In fact, the only evidence of what you would do if you were he is what he did.

If you were born mentally ill, you might have done what Dennis Rader did. If you had suffered a traumatic brain injury, you might have done what Maurice Clemmons did (I don't know that that was Clemmons's problem, but I hope they're saving his brain for a complete teardown). And I know this is going to be hard to swallow, but if you had been steeped in radical Islam and anti-Americanism you might have done what Mohammed Atta did. Anyone who says that he knows what justice is for any of these people is deluded.

Those who count criminal-defense lawyers among the deservedly reviled (and there are many-read the comments on your local newspaper's website) are certain that they know what justice is. They are certain of this in a way that only the deeply ignorant are ever certain.

There's been much talk of justice around the practical blawgosphere in recent days. In no particular order:

1. Scott Greenfield, on aspiring criminal-defense lawyer Keyana's moral dilemma, which she resolved by contending that criminal-defense lawyers seek justice:

Keyana, if you feel a moral dilemma at defending the guilty, perhaps you should consider being a prosecutor, for whom "seeking justice" is a more appropriate standard. Defense lawyers cannot harbor such "troubles".

1. Scott again:

It's understandable that lawyers want to believe that there's a higher purpose to what they do. Who doesn't? And it's certainly understandable that non-lawyers want to think of our work as falling on the side of justice, as it's particularly hard to justify what we do if it serves an unjust purpose. Of course, detractors of criminal-defense lawyers see it exactly that way, unjustifiable.

1. Ohio criminal-defense lawyer Jeff Gamso, on the same topic:

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.

1. Gamso again:

I mean all of this, but it's little more than eloquent (if that) BS. I have discovered that I am a criminal-defense lawyer. That's me. To my toenails. When I was working for the ACLU and basically out of the criminal defense business, I was still a criminal-defense lawyer. I can be no other, and maybe that's why (and how) I view things in these stark terms. But if it's what you are, there's no give in it, no ambiguity.I enjoy the debate, but I'm passionate about the thing. It's not something I do. It's what I am. Can one do criminal defense without that passion and single-minded commitment? Sure. But those who do are not criminal-defense lawyers. There's a difference.

1. Fresno criminal-defense lawyer Rick Horowitz:

You're not there "to hear both sides of the story." This is how the law student (and many others) made the fundamental mistake in understanding "how someone can defend guilty people." There is no "client's side of the story" to present. For that matter, at the start of the trial, there are no guilty people.

1. South Bend criminal-defense lawyer John Kindley:

Whatever punishment, if any, a particular defendant in a particular case might "deserve" (which only God Himself really knows), it is the job of the criminal defense attorney to push as far as he can towards less or no punishment (i.e., an acquittal), for less harm and less potential injustice to the client, and thereby to serve Justice for the client.

Kindley is so tantalizingly close. If only God knows what a particular defendant might deserve, and if retributive justice is a matter of desert, then only God knows what justice is. We can aspire not to be instruments of injustice-not to punish people for things they haven't done, for example (though in the larger picture, for all we know, that may well be justice)-but if we can't know what justice is, how can we seek it, much less claim to serve it?

It makes almost as much sense to say that the criminal-defense lawyer's job is to seek frblniz. What is frblniz? I'm not sure. Where is frblniz? It's out there somewhere. What does frblniz look like? Nobody can say. Will we know frblniz when we've found it? No, most likely not. But prosecutors have to seek frblniz? Yes; that's not our problem-they've got no more idea what it is than we do.

Lastly, if criminal-defense lawyers won't take to heart the words of Clarence Darrow, who will?:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves - whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.