What Criminal Defense Lawyers Do

Mark Bennett thinks he knows.  And not without reason, of course.

“Setting aside personal feelings to defend human beings in trouble.”

Setting them aside.  Not muting them, compartmentalizing them, subordinating them; rather, isolating them because they do not matter.

Really.  Perhaps this process includes yoga or TM.  You know, the “tao” and all that.

The occasion for the lecture is the arrest of a Harris County Assistant District Attorney for Driving While Intoxicated, or whatever they call it down there in Texas.  The arrestee is a friend of a former prosecutor turned criminal defense lawyer and blogger who worries that other members of the defense bar who are not former prosecutors – like Bennett – will gloat, that there’s a double standard at work, that a what-goes-around-comes-around mentality will prevail.

Bennett is very reassuring.  Some lawyer, maybe not him, would give it his “all”, without caring one whit about whether the ADA is factually innocent or guilty as sin.

Then we hear from Indiana defense lawyer John Kindley.

Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”.  I’ve weighed in on that debate obliquely:  here and here, for example.  And here.

Does this segue into The Question?  Maybe.  Bennett seems to think so.

(The Question is:  how do you defend people you know are guilty?)

The quality of mercy is not strained, but the demand of justice is that wrongs be paid for.  Can you rationally try to balance mercy and justice?  Sure.  Will people differ on where or how that balance can be achieved?  Of course.  Can you be perfectly merciful and perfectly just at the same time?

No.  Not in this life, anyway.

How simple, then.  There is plenty of room to defend the “guilty” without “setting aside” one’s own sense of right and wrong, with due regard for one’s limitations in the system.  It is completely unnecessary to go on from there and assert that “justice”, and for that matter “mercy” and “love” and a million other unseen but real things either do not exist or are meaningless and not part of “what we do”.  But that’s what Bennett and Greenfield argue.

Why?  They have reasons of their own, obviously.  I suspect I may know some of them.  The others probably don’t matter.

Why do I care, then?

Bennett and Greenfield are prominent blogging lawyers of the criminal defense variety.  They maintain this bullshit – and it is bullshit, since even they don’t believe it – to the detriment of themselves, their clients, and other CDL’s and their clients.  As I have noted before, they justify Judge Jacobs‘ and other judges’ and jurors’ views that CDL’s are irresponsible, wrongly hyper-partisan, self-interested and untrustworthy.

Put another way, and as I believe attorney Kindley has noted, they cede the moral high ground to prosecutors and judges in advance.  And then – somewhat irrationally – they complain when prosecutors and courts commit injustices over the objections of CDL’s because they never seriously listen to CDL’s.

But they never seriously listen to CDL’s at least in part because of the dogmatic and frankly silly “philosophy”, if you want to even dignify it that much, espoused by Greenfield and Bennett:  part libertarian, part reflexive contrarian, part evasion, part pretended nuance.  Part “tao”, I guess.  I mean, come on.

Both Bennett and Greenfield are very smart and knowledgeable lawyers, but their intellectual confusion is seriously harmful to them and others, in ways that may be difficult for them to discern.

Maybe they can glimpse it now, though.  Read what that prosecutor wrote about his friend from the office with the DUI arrest.  Read some of the rest of his blog.  He wears his heart on his sleeve, without all the multi-layered, pretentious, pseudo-intellectual relativist claptrap.  If he had gotten the same kind of honesty from you in return maybe he wouldn’t be worried that his friend wouldn’t be able to find a true friend among the defense bar.

You in particular, Mr. Bennett, should be ashamed that another lawyer even raised that as an issue.  Are you?  It’s not very flattering, professionally speaking.

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