The ideal ideal
A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”
“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”
It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.
But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.
Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:
‘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.’
This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.
I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.
Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.
Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.
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about 1 year ago
As one who has a number of relatives who have committed real crimes, with real victims, and who has himself (like Barack Obama and George Bush) committed what the government calls felonies on multiple occasions in the past, I’m all on board with recognizing the humanity and intrinsic worth of people who’ve committed crimes, even the worst crimes. But while I think that such people, who may have never been shown any love by anyone prior to committing their crimes, deserve somebody to stand side by side with them, no matter what they’ve done, criminal defense attorneys are not social workers, therapists, or clergy. So simply standing side by side with the accused, regardless of whether he’s innocent or guilty as hell, is not (it seems to me) what gives our profession its intrinsic worth. Our job entails trying to get them off scot free if possible, even if they’re guilty of a horrible crime against some innocent victim. There’s nothing inherently noble about trying to help somebody “thwart justice.” What makes doing so a noble part of a noble profession is that by doing so we protect the “innocent.”
It goes without saying that I am a big believer in mitigating circumstances. (In one of my comments on Mark’s blog I noted that by “innocent” I included those who might be guilty of something but aren’t necessarily as guilty as the State says they are.) It goes without saying that in many instances the State’s prescribed punishment for a particular crime is disproportionate to the crime, and that it is far better that even a guilty defendant be acquitted entirely than that he be punished according to the State’s prescription. It goes without saying that there are some things the State treats as crimes that aren’t crimes at all.
about 1 year ago
It’s not so much the standing next to, it’s the standing up for. And the standing up against the power of the state. (Damn those prepositions.)
Sister Helen Prejean likes to say that we’re all better than the worst thing we’ve ever done. She’s right of course. More to the point here, we all need an advocate who will (1) hold the government’s feet to the fire on our behalf; (2) serve as a bulwark so that the only way the government can get to the client is by stomping first on the lawyer; and (3) argue whatever there is to argue on the client’s behalf.
That’s fine to do for the innocent, the beautiful, the rich and powerful, and god knows they need the assistance when the government comes after them. But it’s vital to do for the guilty, the hideous and reviled, the desperate and powerless.
It’s why, ultimately, it’s public defenders, they who take on all comers, are the noblest of us.
(Yes, you may take a bow, now, Gideon.)
about 1 year ago
I’m having a problem with the phrase “there’s nothing inherently noble about trying to help somebody ‘thwart justice’” since that’s not at all how I viewed what we do. I’m of the Gamso camp. My job is to derail and yes, to have someone who might be a villain back on the streets as quickly as possible. That’s my JOB. We have determined it is a good, proper and necessary function. In order to determine whether it’s ‘thwarting justice’ we’d have to come to a consensus on how ‘justice’ is defined.
If you ask a prosecutor what justice is, they’ll tell you it’s to indict and convict everyone who walks into a courtroom. We disagree with them, right? Every time we step foot in a courtroom and speak up on behalf of our clients, we are thwarting justice.
Well, you know what? Good. Their justice sucks anyway.
about 1 year ago
All I’m saying is I think We (the founders et seq.) “have determined it [trying to have someone who might be a villain back on the streets as quickly as possible] is a good, proper and necessary function” BECAUSE it’s necessary to protect those who aren’t villains from being convicted of being villains.
Prosecutors are some of the greatest villains out there. You’re getting no argument from me on that point. If you’ve read my blog you know I know that. Suppose by some miracle a prosecutor was being prosecuted for conspiring with the police to manufacture evidence against a defendant. Suppose I had to choose between representing the prosecutor and representing some kid from the hood who made a bad mistake. I know who I’d rather represent.
Suppose one of those judges from Pennsylvania who were sending kids to kiddie prison in exchange for kickbacks wanted me to represent him. I think I’d pass. (Well, honestly, I probably wouldn’t, because I need the money. But if I didn’t need the money I’d pass.) I’d rather not be in the position of trying to thwart the JUSTICE that judge so obviously and richly deserves. You think he deserves a healthy dose of justice, don’t you? (And for those who think I’m a menace to society because of my views, let me assure you that I would not undertake the representation of the judge if I didn’t think I could represent him as zealously as if he weren’t the scum of the earth.)
about 1 year ago
The last time we went around and around on this, I said that I’d never found a client I wouldn’t represent. Then I added that the Bernie Madoffs of the world might be where I’d draw the line, but that I hadn’t had to decide, because they’ve never come calling.
Aside from as a joke, I don’t think I’m trying to thwart justice. I’m just standing up for the accused or the convicted against the government. I’m serious when I say that I don’t know what justice is. I can engage, all right, in the abstract philosophical discussions (though I’ve always been more interested in metaphysics than social philosophy), but as an actual concept with some connection to the real world, I’m at sea.
I’m also serious when I say that I don’t care about justice, whatever it might be, in my role as a lawyer. It’s simply irrelevant. And this, John, is where we were at odds a few months ago. As a lawyer, I’m interested in defending the accused. Any accused. It’s what I do. If there is some relationship between what I do (which is what I want to do, choose to do) as a lawyer and something that you or my mother-in-law or Obama or Sarah Palin or Blago or Vincent Bugliosi (who you brought up on Bennett’s blog) call justice, it’s entirely coincidental, and it’s not something I either understand or, as I say, care about.
about 1 year ago
When it comes down to it… no matter what aspect of the lawyering profession we are in… we ALL must be businessmen (women) to a T… otherwise we’re destined for failure.
I’ve never done criminal defense… but I imagine it must be PURE hell to represent someone that you know is guilty as sin.
Daniel
about 1 year ago
Actually, I have no problem representing those “guilty as sin”..and one of these days I may even meet one. Representing the truly innocent, however, tends to make my stomach knot up and my sleep restless because I know just how stacked the system is against them.
But for me, the primary motivation comes from the belief that all the criminal defendants in the world don’t represent even a fraction of the threat, to me or to society in general, that the police and prosecutors do if left unchecked.
about 1 year ago
Just stumbled across this blog. It is fabulous. Everyone that has made comments has reminded me of the reason that I do what I do. I am not a public defender. I am a criminal defense attorney that takes court appointed cases, but I have a solo practice.
I am currently representing a man that is alleged to have been inside a ladies chimney with a machete. (and this is not even the most interesting case I have had..lol)
My friends always ask me how do you represent these people? I guess I do it for a combination of all the reasons listed in everyone’s comments above.
I guess my reasons are just as complicated as the reasons that my clients do what they do.