We Defend

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.

Do they?

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.



Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

6 responses to “We Defend

  1. I’m generally in agreement with you on this topic, but I have a couple quibbles. I’d say the primary purpose of the criminal justice system is to fight crime. This entails recognizing that the conviction and punishment of the innocent by the criminal justice system is one of the worst crimes there is. The purpose of the criminal defense attorney is to fight that particular kind of crime. But to fulfill that purpose the criminal defense attorney must zealously defend his innocent and guilty clients alike.

    I’d also hesitate to say that the CDL is “primarily” responsible for insuring that the innocent are not punished by the criminal justice system. It’s the prosecutor who decides to bring charges in the first place, and his mandate to “do justice” rather than to simply secure as many convictions as he can means he should not bring such charges unless he is personally convinced beyond a reasonable doubt of the defendant’s guilt by the admissible evidence. Furthermore, the prosecutor (e.g., by withholding Brady evidence or otherwise committing prosecutorial misconduct) and the judge (e.g., by making bogus evidentiary rulings) are in a position to make the CDL’s fulfillment of his responsibility much more difficult than it should be, if not impossible.

    In a comment on one of your earlier posts I acknowledged what I believe to be my very real responsibility for the conviction of an innocent client. But that client never should have been charged in the first place, and his trial was attended by both prosecutorial misconduct and bogus evidentiary rulings. In spite of my own serious mistakes and this prosecutorial misconduct and these bogus evidentiary rulings, the jury should have acquitted him. So while I feel truly responsible for his conviction, I don’t feel “primarily” responsible.


    • Well, that’s not just a quibble. And I think, unsurprisingly, that you are clearly wrong: fighting crime is the primary purpose of law enforcement, not the criminal justice system. The criminal justice system is a truth finding process and the truth it is supposed to find is guilt or innocence. The obvious reason it is supposed to find that is so that the innocent are not punished. The executive is seeking to punish every person it prosecutes, innocent or guilty. The imperative of the process is to distinguish the one from the other, and in the case of the former to tell the executive “no”.

      Failure to meet a responsibility is not necessarily morally blameworthy. If you are undermined by prosecutorial misconduct or judicial bias and an innocent is convicted it may not be your fault in the sense of moral blameworthiness. But you would retain a responsibility to try correct it. If you do everything you can do and are overcome by forces and powers beyond your control you are not to be faulted; but it is still a failure, and still more a CDL failure than anyone else’s, though it is surely the system’s failure as well.

      It doesn’t make much sense to place the primary responsibility on the prosecutor. Seeking to convict and seeking to acquit are inherently contradictory; the prosecutor must choose one or the other and it is impossible to pursue both in equal measure. Once he has chosen to prosecute in good faith, his primary responsibility is to convict, subject to the secondary responsibility of relenting if it appears he has made a mistake. The responsibility for correcting his mistake is obviously the CDL’s.

      This subject is somewhat more theoretical than a given case. You can be informed by an experience, but ultimately the question involved is more about what’s in prospect than what is in retrospect. Before you undertake to do something you should know what it is you are trying to do. “Defend” is a grossly inadequate, even misleading answer where the defendant is innocent. The only acceptable result for a CDL under those circumstances is an acquittal.

      Because it is being considered in the abstract, a lot of practical problems are not being addressed here, such as how do yo know the defendant is innocent? Very often you don’t, in practice. But that reality should not confuse attorneys about just what it is they ought to be doing.


      • I may have been negligent in my duty to defend my innocent client, but it’s the prosecutor and the jury who intentionally convicted him, who actually committed that wrong. Suppose a police officer on his way to a robbery in progress runs out of gas because he forgot to fill up his tank, and as a result the robbery ends badly. The police officer is certainly at fault and responsible for the harm caused by his breach of duty, but it’s still the robbers and not the police officer who committed the robbery. This seems related to the common practice of defense attorneys in explaining the concept of burden of proof in voir dire of explaining to the potential jurors that the defense is not obligated to put on any witnesses or cross-examine any of the state’s witnesses or make any argument. The burden is on the prosecution, and on the jury.

        In saying all this I’m not trying to shirk or excuse my own responsibility for my failures in the case I’m describing. But in the case I’m describing, if I had in fact done nothing — put on no witnesses, done no cross-examination, made no argument — the jury should still have acquitted. (It was an unusual case, in that the whole incident was caught on the defendant’s surveillance tape.)

        As far as the purpose of the criminal “justice” system: I define “Justice” as the absence of crime. The “justice” that is doled out by the criminal “justice” system is Justice only in a derivative sense, i.e., only insofar as by deterrence, rehabilitation, incapacitation and/or retribution it tends towards or approximates the “absence of crime.” That’s its overarching purpose — to fight crime. And as I said before, the conviction of an innocent man is itself a crime, an injustice. The purpose of the criminal justice system encompasses, but is not exhausted by, ensuring that innocent people are not punished.

        What I mean by the “criminal justice system” is the whole darn thing, encompassing judges, prosecutors, defense attorneys, and law enforcement. All of these elements share the same overarching purpose — to fight crime — though they go about fulfilling their role within the system in very different ways. The role of the defense attorney, for example, is to fight the crime of convicting the innocent, though that role necessarily entails also fighting to free the guilty. The role of the prosecutor, by contrast, entails avoiding the conviction of the innocent almost as much as it entails securing the conviction of the guilty. I don’t think I’m saying anything controversial by saying that. It’s what is meant by saying the job of the prosecutor is to “do justice.”


        • The point is subtle. I think you missed it. And I think you are relating the post too much to your own specific experience.

          But, perhaps I shouldn’t use the term “criminal justice system”; maybe “criminal court system” would be better. I don’t think that distinction is the reason you’re a little off here, though.

          The prosecutor has a duty to do justice, no argument there. But by definition his view of justice is a conviction as long as he is prosecuting. Assuming he has a view of justice. Placing the primary responsibility on him not to convict the innocent makes his job unintelligible.

          But if it’s not him, who then? The judge? The jury? Similar problems arise.

          The CDL is the only place the primary responsibility can reside. And if it’s not there, then no one is primarily responsible.

          And that more than anything else – more than faulty eyewitness testimony, more than prosecutorial misconduct, more than bad science, more than any other specific lesser problem, would explain the prevalence of wrongful convictions: nobody is responsible for them, so they’re bound to happen.

          I assure you a prosecutor feels he is responsible to achieve the conviction of the guilty. Think of the systemic asymmetry if the defense counsel feels no corresponding responsibility to obtain the acquittal of the innocent.

          “We defend” is perhaps an adequate explanation of what CDL’s do when they represent the guilty. But it’s misleading, and worse, to say that it’s the only thing a CDL is responsible for.


          • I think the rationale for the “we defend” mantra by Greenfield and Bennett is to emphasize that the zealousness of the CDL’s representation should not be affected by the guilt or innocence of his client. That is, our job entails not only fighting for the freedom of the innocent but also the freedom of the guilty. But my retort to that is that it’s society’s interest in not convicting the innocent which justifies our defending the innocent and the guilty alike. Surely I’m more crushed by the conviction of the innocent than I am by the conviction of the guilty, though it’s true that as a CDL I should fight just as hard for the acquittal of a guilty client as I do for an innocent client.

            I get what you’re saying about the “primary” responsibility being on the CDL to obtain the acquittal of the innocent. That’s what makes our job so noble, and also such a heavy burden. It’s why we have a better claim than prosecutors to say we “do justice.” I don’t want to diminish that weight of responsibility. It’s the fire that fuels our fight. But I also don’t want to relinquish my justified anger at some prosecutors and some judges and some juries for their role in convicting the innocent. Another recent case I defended is probably more illustrative and less emotionally-loaded than the one I’ve been referring to. The jury acquitted my client in less than 30 minutes. They smacked the prosecutors good in the jury room afterwards, asking them whose bright idea it was to prosecute the case, and I was glad they did. Although I knew there was no way the prosecutors had proven their case beyond a reasonable doubt, I also knew that a lesser jury might have convicted anyway.


  2. brisget O'nuellan

    This is why history repeats itself……


    its actually quite long but those who have done their homwork will find here a clear and precise, nicely ordered synthesis to what is known to many.


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