That, according the sages of the blawgosphere, is what criminal defense attorneys (CDL’s) “do”. No more, no less.
This is regarded as axiomatic, not up for discussion, not a matter of agreement or disagreement or elaboration or explanation. Further discussion is tiresome. If you have a problem with it, the problem is you. You just don’t “get it”. Everyone else does.
When people evade engagement on a subject something is fishy. What you often find after investigating and exploring is some fundamental error that everyone is at least dimly aware of but no one wants to confront directly.
The “we defend” mantra is part of a whole outlook on lawyers, judges, the justice system. Not to mention truth. Love. Beauty. It is a contributing factor to the justice system’s intractable and serious problems. And it comes from a surprising place: those that are rightly the most vocal about those problems.
Being a professional is a fine thing. You can fit otherwise intellectually unintelligible phenomena into broadly applicable mental constructs. A random act of violence becomes not a random act of violence at all, but an “assault” or a “robbery”. We know what those are, because they have “elements”, criteria for judging whether they have occurred and who was responsible for them. The process of assessing human conduct and fitting it into these mental categories is frequent and ongoing. It can be very interesting, even fascinating. Beyond that, I would never deny that this is important work, and that the categories are generally helpful in understanding and assessing human behavior and applying socially useful and proper sanctions, one way or the other.
But there are pitfalls. One pitfall is summed up in the saying: when you are a hammer, every problem begins to look like a nail. We get too familiar with the categories and too confident in their efficacy and we begin to apply them more and more indiscriminately. When left unchecked this can result in lots of phenomena being forced into categories where they don’t belong. This has an amusing aspect to it: very smart people who are well trained in working with the categories wind up doing incredibly stupid things, and this can be funny. But there are also aspects that are not amusing at all. Errors of this nature can do a lot of harm.
Another pitfall is what you might call the teleological error. You become so intellectually immersed in the particulars and details of your day to day activities that you forget what the overall purpose of your work is. When that happens it is often those who are not professionals that see clearly when something is terribly wrong even as all the professionals appear clueless.
I recently quoted Canadian (British?) newspaperman Conrad Black on the purpose of the penal system. He eloquently made an obvious point that many in the system itself have forgotten, or maybe never knew.
But forget the penal system. What is the primary purpose of the criminal justice system?
This is a very easy question to answer. It is not so that people can put on black robes and be called “your honor”; it is not so that Scott Greenfield and Mark Bennett can make a living and show that they are smarter or better lawyers than someone else; it is not a playground for prosecutors to pursue career enhancing convictions.
The primary purpose of the criminal justice system is to insure that innocent people are not punished. If it does not effectively do that there is no other legitimate purpose for it. If it is incapable of doing that we should abolish it and let the executive – the ruler – punish and imprison and even execute at his discretion, and stop pretending that anything else is going on. Doing so under those circumstances would be a significant improvement on every level.
But we have a criminal justice system, so let’s stick with that for now. And go on to the obvious corollary question: who working within the criminal justice system is primarily responsible for insuring that the system itself performs its primary function – that of insuring that the innocent are not punished?
Again, this is a simple question with an obvious answer. The CDL is primarily responsible. It is his job. It is obviously not the job of the other actors in the play – judge or prosecutor or jury or appellate court, although they are responsible to recognize and acknowledge the facts when the CDL has done his job. Put another way: when the defendant is innocent, it is the CDL’s job to insure that he is acquitted. “Excellent representation” that yields a conviction doesn’t cut it. At all.
And so the “we defend, no more no less” nonsense is just that. It “doesn’t matter” if the defendant is innocent or guilty? This is a denial of responsibility, and a denial of responsibility that serious is a poison, a nest of termites that increasingly infects the entire edifice. It leads others to deny their responsibilities, because being responsible in a world of irresponsibility is progressively more costly as responsible individuals are fewer in number and proportion.
We have now reached a point where wrongful convictions are common, and where the predominant point of view on the United States Supreme Court is that they are not responsible either: they review convictions only for “constitutional error”, and even then only when they feel like it.
I’ve got news for them. Every wrongful conviction is a constitutional error. Every wrongful conviction is a mortal threat to the system itself, because it undermines the primary reason the criminal justice system exists. And if the system is unable or unwilling to accept the responsibility that goes along with that it should not exist at all. And if it should not exist at all, then neither should the rest of the government because the justice system is an integral and essential part of it.
I toy with anarchy but I am not an anarchist. Government is a feature of any civilized society. But this is not comforting. It means that wrongful convictions are a threat to civilization itself. Each and every one of them: the smallest and most seemingly insignificant of them are more of a threat to civilized life than the World Trade Center attacks on 2001, because as terrible as those were they resulted in lost buildings and lost lives, not the loss of civilization.
It is for this reason that defending the accused is the most important function in the justice system. The fact that it is so often poorly done and poorly compensated is a reflection of how much civilization has deteriorated already. But it is a further tragedy and loss that so many who practice this essential craft demean and disparage their own role through a stubborn, unworthy and unjustified creed.