From Norm Pattis:
The criminal law is not about moral blameworthiness. I cannot emphasize this enough…Thus a person accused is presumed innocent. If the state cannot prove the allegations it has raised, the defendant goes free whether they are morally blameworthy or not.
You just have to wonder. If the criminal law is “not about moral blameworthiness”, then why is a verdict in favor of the prosecution called “guilty”? This is a term that means, precisely, moral blameworthiness. It might be truer to say that a “not guilty” verdict – in favor of the defense – is not about moral blameworthiness, since you can be found not guilty but that doesn’t amount to an exoneration, at least intellectually it doesn’t, although emotionally it often does. Or should.
“Presumed innocent”? We’ve talked about that before. What Norm says here is both an accurate statement of what we say we believe, and extremely – even dangerously – naive coming from a lawyer.
It’s one thing for a lawyer to believe that it’s fine if someone he represents, though factually or morally guilty, is found not guilty at a trial. But to go on from there and assert that the law has nothing to do with morality is taking that unexceptionable, practical idea and building it into a whole outlook on reality that is part tedious 20th century relativism, and part pretentious intellectual fiction.
A process that can end in a finding of “guilt” is as obviously about moral blameworthiness as anything could possibly be. And the presumption of innocence is a pious and ultimately false bromide that everyone knows is exactly that, except in the most technical and legalistic sense.
I’ve come back to this a few times because it recurs so often out there in the blawgosphere – and it’s more common in lawyer blogs than elsewhere – and because it’s pernicious. It is the defense bar’s contribution to the terminal dysfunction of the justice system, the complement to bad police and prosecutors and judges, which undermines not only the system’s purpose, but also the interests of criminal defendants as a group – their clients.
And mine. So when I see it I get a little upset.
One of the things that is so maddening and frustrating about it is its ultimate stupidity. The belief itself – moral relativism or indifference – is so obviously dated and tiresome. And on the practical level there is absolutely no upside for criminal defense lawyers to take that position. There would be an upside for prosecutors to take it – but ironically they ordinarily don’t. And when they do, you’re talking about a dangerous prosecutor and probably a lousy person. Prosecutors who believe that way certainly shouldn’t be prosecutors. They probably shouldn’t even be lawyers.
And beyond even that, it is always, always, intellectually dishonest. Transparent double talk. Nobody really believes in moral relativism. All arguments for one position as opposed to another are at bottom moral ones, and in the adversarial system one must always argue for one position as opposed to another.
The job of criminal defense is difficult enough. Why do so many criminal defense lawyers pointlessly increase the difficulty?
I could make an argument that this silly intellectual affectation has done more to make the justice system dysfunctional and twisted than any other single factor. The silver lining in the cloud is that it’s far more common among the older lawyers than among the younger ones. It’s an establishment position. And the establishment is crumbling.