Once we were able to get an acquittal in a burglary trial where a group of guys had broken into an unoccupied home to steal some copper piping. There was some testimony that our client had been with them and there was some testimony that our client had not been with them, but the reason for the acquittal was that the prosecutor had forgotten to charge the defendant as an accessory. As a result he had to show – because “elements” of the offense – that the defendant had actually physically entered the home himself, and there was an issue about that and we guess we convinced the jury that he hadn’t entered the home or at least that none of us knew if he did. So not guilty.
Verdicts of not guilty are very rare, so we must have been very clever to do that, except that we weren’t. We just found a weak spot in the prosecution’s case and tapped it gently enough, or hard enough as the case may be, and it worked out well for us and our client.
Was it a “just” verdict? We think so. Do we know so? Does it matter? Probably not. At least not very much.
The point is, this was a run-of-the-mill criminal defense episode, except for the result because a not guilty verdict is always extraordinary. But the result could easily have gone the other way, too, and there’s no getting around that.
And what if it had, and the defendant was actually innocent and was never even there? Would that be a “just” verdict?
How fucked up do you have to be to answer anything other than – indeed, very quickly – “NO!” to that question?
But then there’s this:
Hidden in this otherwise very astute expression of the good intentions of the players are two words that give rise to a significant part of the problem: doing justice. You want to do justice, whatever that means? Be a prosecutor. That’s their job. And the system always needs good, honest, smart prosecutors to do justice.
Criminal defense lawyers? We don’t do justice. We zealously defend the accused. We use whatever tools the law allows to do so.
And what’s SHG’s point? It’s always the same:
The social justice adoration of feelz doesn’t win cases. Good lawyering does. Let’s bring good lawyering back into fashion.
If a just outcome is unknowable in one case that does not mean it is unknowable in every case, or that there is no such thing as justice – or, for that matter, that justice is no part of a criminal defense lawyer’s job, only the job of prosecutors and judges and juries.
SHG’s approach is unserious. How is an unserious approach “good lawyering”?
Worse, every criminal defense lawyer, and every criminal defense lawyer’s clients, have suffered and will continue to suffer from being lumped in with SHG and his unserious approach.
Yet we’re also pleased that this approach appears to be on the wane and expect it will disappear into the void whence it came. And that might also be the main reason we’re not so acerbic and patronizing to younger lawyers.