23 August 2004

Defending "Those People"

Anyone who represents Defendants in criminal matters has been asked the question over and over again: How can you defend those people? The moral assumption underlying that question is inescapable: to try to keep someone who is probably guilty from being punished is wrong/evil. I concede that this is a valid assumption. Having made that concession, how then do I justify defending people when I know that by far the larger number among them are probably guilty?

Well, in a great many cases I just look the person in the eye and say, "It pays the bills" or some variant thereof. I have learned from experience that most really don't want to hear an answer, particularly if it involves some thought or might challenge their world view. And it is amazing how many people will happily accept this reason despite the fact that it is, at best, an amoral position.

If someone seems to be expressing a real interest I go to the fairly basic answer which is reflected in statement which was previously at the top of this page:
If I choose to defend only the Righteous,
When the Rigtheous are accused,
What tools shall I have to defend them?
The statement has something of a double meaning. One interpretation is that if I don't practice except in the rare ocassions when there is someone I am certain is innocent, I shan't develop the skills to be able to defend that clearly innocent person when such skills are desperately needed. The second is that I must fight on in an attempt to preserve those rights and protections which exist for all citizens. Should these rights and protections slip away in the process of making sure "the guilty" go to prison when the truly innocent are brought to trial there will be nothing left to keep them from just being pushed through the system toward an unjust conviction. Thus, the evil of not performing the duty of defense is greater in the long run than the evil of defending those who probably committed the crime.

Still, personally I find this answer unsatisfying - particularly in the major criminal events: the Sniper attacks in DC, the Oklahoma City bombing, the killing of a pregnant mother, etc. The actual reason which I find in my heart is more complex and involves religious value judgements. What follows is an attempt to explain the reason I believe criminal defense attorneys morally correct in their defense of those accused, no matter who the accused is or his actual level of guilt.

I proceed from these base principals:
(1) To harm another person is a sin.

(2) It is impossible to live life without harming other persons.

(3) It is our duty to sin as little as possible.

(4) As members of a democratic republic we are responsible for every act of our government.
The cornerstone of this is that harming another, no matter whom you harm or how slight the harm is sinful. You could make the same argument that I make below by making some sort of "moral imperative" rationale but that just doesn't work for me. Personally, absent the argument of moral requirement, I do not find persuasive non-theistic arguments for moral behavior. Frankly, without a requiring agent nothing is actually necessitated beyond that which leads to an ordered society. An ordered society does not necessarily worry that a certain percentage of its populace is harmed as long as society continues to function.

My faith informs me that we all live sinful lives. Even were we still in an innocent state as proclaimed by the story of Adam and Eve in Genesis the innocence would not come from the fact we committed no sins but in the fact that we would have had no intent to do so. Remember, the tree was not about good and evil it was about the knowledge of good and evil. Gen. 2:16-17 & Gen. 3). Whether you believe this to be the literal Truth or a co-opted Mediterranean creation story meant to show creation and fall at the hands of One True God (rather than a multitude) it is instructive as to the presence of sin.

As I see it, the harm of others is clearly a sin. Throughout the history of my faith it has moved more and more openly to this position. The Mosaic code seems to have been an attempt to stop disproportionate harm to others by replacing things such as blood feuds (two of them for every one of us) with lex talionis. Exodus 21:23-25 In the immediate period prior to the life of Jesus it is instructive that this had evolved to: "That which is despicable to you, do not do to your fellow, this is the whole Torah, and the rest is commentary." Shortly thereafter came the "golden rule": "Do to others as you would have them do to you." Luke 6:31. In more modern times I look at the Church's teaching on the death penalty: forbidden unless there is no other means to keep the person from harming others.

The problem is that, given a little thought, one comes to realize that every act or act of omission causes some sort of harm to others. You work hard and get a raise and the person in the next office doesn't; you don't work hard and don't get the raise and provide less for your family than you are capable of doing. Now, I have purposefully chosen two fairly innocuous examples rather than a parade of horribles in order to emphasize that in most cases the harm, and therefore the sin, is minor and even goes unnoticed. Nevertheless, in every single choice of action either choice will render some harm to someone. This is a "but for" standard not a "proximity" standard.

Under this reasoning it follows that any act of the government which deprives someone of any basic right such as liberty is a sin. Often it is a necessary sin. Entering a suspect's house under the auspices of a warrant, gathering items from that house, and throwing the suspect in prison for the rest of her life because these items prove she is a serial killer are all necessary evils. They must be done in order to protect society at large despite the fact that they harm an individual. We are willing to sacrifice and do such evil acts because they are overweighed by the halting of greater evils.

We are responsible for the acts of our agents and those who serve in the government are the agents of everyone in the nation. Every harm which they perpetrate is imputed upon us all. The burden is to make sure that no greater harm is passed on then necessitated by the circumstances. Although not an exact fit, I think St. Thomas Aquinas' statement is instructive:
Human law is law
Only by virtue of its accordance with right reason,
By this means it is clear that it flows from Eternal Law.
In so far as it deviates from right reason
It is called an unjust law; and in such a case,
It is no law at all, but rather an assertion of violence.
Reason calls us to limit that amount of harm which our agents do in order to keep the attribution of that extra harm from ourselves. At any time the government steps beyond the necessary harm required by reason it is committing a violent act for which we are responsible. It is no answer that the sovereign is the actor for we are the sovereign as long as we have the franchise.

The role of Defender is to make sure that our government in its laws and punishments does not rise to the level of an assertion of violence because it has strayed beyond reason. It is, perforce, an imperfect solution. The Defender is an advocate for only a single individual at a time and must fight within the boundaries as they are laid in existing statutes and case law. Thus, for instance, he is not in a good position to do anything about the fact that under Virginia's laws licenses are suspended far too easily (usually punishing the lower working class for not being able to pay fines in time or get insurance while providing no alternative but to break the law in order to drive to work) or that the federal sentences are badly out of kilter (see my prior posts here & here). Still, it is a vital role. The Defender is the person who stands between society and the descent into vengeance.

Vengeance, as one might suspect, has no place in the system as I perceive it. Deterence and protection of society at large are valid goals which can balance appropriately the evil inherent in harming that particular member of society accused - if he is in fact found guilty.

On the other hand, vengeance is not a valid reason to harm another. It rises out of the base emotions of anger and, more deeply, out of fear. There is no such thing as a fair trial or an appropriate punishment when vengeance is involved. There is assumed guilt and a rush to overpunish. It is what has driven us in the past to acts such as lynchings or stonings. It is the greatest threat to a just, balanced system because it is never satisfied. Rules and rights will be bent or abolished because they get in the way of proving someone did what he is accused of having done. Punishments will be out of proportion because revenge is never satisfied at an appropriate level: it wants the sense of shock and fear caused by a disproportionate punishment because that gives the sense that the accused has then been as affronted as much as the victim is supposed to have been.

The Defender stands as the bulwark against such perversion. He does everything in his power to preserve the rights, rules and appropriate sentencing which guarantee the system will remain just, balanced and harm none further than is necessary. In fighting the thousands of individual battles he contributes daily, at the very least making the attempt to keep our laws and legal system from slipping into a mere assertion of violence. He fights against overharming individuals through unproven convictions and convictions made through the destruction of those rights and laws protecting everyone; he fights against the constant cry to overpunish. In so doing he keeps the stain of excess harm from society at large. He performs a most necessary service for us all.


Anonymous said...

Try reading "The Conscience of a Lawyer" by David Mellinkoff. It should be required reading for any criminal attorney.

Anonymous said...

Ken, do you believe in the "adversary system"--that the most effective way to get at the truth is to have advocates for each side fight it out? Or would you prefer a system where the entire court is devoted to the truth first and foremost? Given that we (the US) have chosen an adversary system, I don't think it's appropriate to criticize Defenders for fulfilling their assigned roles. But I've never been convinced that the adversary system is really the way to go. Maybe it's one of those things that in practice is better than the alternatives (worst form except for all the others). What do you think?

--Andy B

Anonymous said...

I think there are two questions:

1. Why is criminal defense work important and necessary? and

2. Why does a particular individual do it?

As to item 1), a vigorous, attentive defense attorney keeps the innocent out (good!) calls the government on its excesses (good!) gets bad folks out on the street faster or acquitted (bad!) and effectively supports our system of jurisprudence (good, IMO).

Part of the job is getting the child molesters back on the street. That's distasteful, surely. But bad defense attorneys are a scourge; they sell out their clients and really are just paying the rent. (Fundamentally dishonest criminal defense attorneys may do better for their clients, but worse for the system, another difficulty.)

I have no problem agreeing that we want hard-working people to be criminal defense attorneys. I'm much happier seeing a defense attorney working hard than doing nothing or being incompetent.

As to why an individual would want to do the job... bleah. I wouldn't enjoy it; I especially wouldn't enjoy the parade of ungrateful felons who people like Mr. Lammers assist. The number of said felons who make obviously horrible decisions (But I want to testify! I will surely fool those jurors, and that other dude in the suit can't possibly trick me on cross-examination!) are alarming.

As to the morality, I think Ken's got it a little scrambled. His almost utilitarian read of the Bible... well, I certainly support utilitarianism, so I shan't complain. Good work on criminal defense is good for society; in this I concur, and I salute CrimLaw's efforts to bring them forth.

But, boy, I wouldn't do it. Advocating impossible positions does not sound like fun to me.

Ken Lammers said...


Yes, "to pay the rent" is a cop out. Which is why it is disturbing that there are so many out there who accept it as an answer. You need not tell me that there are innocent people out there; I defend them. Anyway, I've always prefered To Kill a Mockingbird over You Only Live Once.

Reread the part above about vengeance. However, a Defense attorney cannot limit himself to only overstepping prosecutors. Quite often the problem comes from the Legislature passing charges which can be stacked or courts refusing to apply common sense strictures such as those embodied in the single larceny doctrine in a rational way across all types of charges. All of this must be checked if possible.

Actually, I don't usually feel too much of a need to defend myself; I have no problems with my profession. However, somewhere about the 5,000th time the question is asked if you are introspective in the least you put some thought into it. When I write about "a complete defense of the position" I'm talking about defending a thesis not defending the task. This is an intellectual exercise; the fact that I am a Defense attorney is not. It is where I am and I believe that people are meant to be where they find themselves.

Jeepers, I probably just scared away all sorts of folks. Good thing I didn't use overtly religious language and say something like "It's not my place to question that to which I was called."


Mike said...

Great post. Thanks for sharing your philosophical struggle with us.
Your reasons for doing what you do sound similar to Edward Benett Williams'.

Anonymous said...

I am currently a third year law student about to start my criminal defense clinic. When I started law school I was not sure I could stomach criminal defense work. Now I am looking forward to it with a passion.

I beleive that a good criminal defense lawyer is the cornerstone to putting the bad guys in jail. Society should not be comfortalbe when persons charged with a crime do not get a good defense. Then when a person proclaims they are innocent, how can socity know?

On the other hand if a person gets a top notch defense, and is still convicted, society knows that the person is guilty, and should have no qualms about punishment. It is the dilligence of the criminal defense lawyer that allows the system to lock the door and thow away the key. By defending even the most reprehensible people, the defense attorney is doing his part, along with the prosecutor, judge, and police.

When anyone asks "how could a defense attorney defend that person?" I reply that only with a good defense, can we be comfortable with locking up the bad guys.

I also think that when people think of criminal defense attorneys, they think of people who break or bend the law in order to get thier clients "off." These attorneys also hurt the system, much like when the police plant evidence. I think this perception comes from high profile cases, TV, and movies. All one has to do is spend a day viewing a criminal docket to know that most criminals do not get off on a brilliant move by the defense attorney. The government does win most of the time.

Mark said...

Criminal defense work is not for everyone. Nor, is it for the faint of heart or naive. Defense attorneys are exposed to the darker side of our communities which not everyone can handle or may want to see. I'm not sure I could do it. Although, I have considered prosecution, but I don't think my family could afford it.
I too share your religious convictions and have never heard it coupled with defense work before.
"We are responsible for the acts of our agents and those who serve in the government are the agents of everyone in the nation. Every harm which they perpetrate is imputed upon us all."
Showing it abstractly or big picture hit home here.
Interesting. Thanks for a fresh perspective.

Anonymous said...

I'm a 2L probable future prosecutor, and have enjoyed reading your blog since stumbling upon it about 6 months ago. Though I could not myself be a defense attorney--for various personal reasons I won't go into--I applaud smart, hardworking people like you who choose that path. Our legal system can only function well when the rights of the accused are given more than lip service, and having diligent, intelligent defense attorneys helps that happen. I think it would be a very scary society if all the brains/resources were on the state's side. Cheers!

Mirriam Seddiq said...

I coach a trial team at our local law school and the kids there ask me that question all the time. Most of them want to go work for DA's offices and say they couldn't do 'it'. Pisha!!! I say!! I said the same thing. In fact, I remember, as a 1L, reading that criminal defense attorneys could KNOW their client committed the crime, and couldn't tell anyone and I cried!! OH THE INJUSTICE.

I'm over it now. If my client is actually guilty, by whosever standard, and they walk out the door at the end of the day, that's not my fault, it's "theirs" and "they" should concentrate on actually finding out facts and stop with the annoying rhetoric about good/evil.

That's my story and I'm sticking to it.

Dace said...

Dear Mr. Lammers --

I "surfed" into your blog by way of another blog by way of another blog back ad infinitum. I have one question and one kudos for you.

The quote that is mentioned in your post as having been previously at the top of your blog page:

If I choose to defend only the Righteous,
When the Rigtheous are accused,
What tools shall I have to defend them?

Is that an original quote by you? If so, Kudos -- great quote!

Also, another kudos (I guess this is a "double kudos" comment) on your four basic principles! While I may (or may not) agree with your theology (you were very gentlemanly to comment on "biblical literalism" vs. "what arose from the oral traditions of the Mediterranean"), you phrased those principles so beautifully that I may just print them out and post them near my home computer's workstation!

Thanks for some great thoughts! If you have time to respond, my email is available via my blog profile. I have just started one, not much there yet, am editing some comments/diatribes I wrote previously (and emailed to my long-suffering friends, hence the blog) to make sure they still make sense before I post!

I also look forward to see what will happen with the upcoming Supreme Court nominations "re: 'Let the melee begin'" Wheeee! What "fun" that will be.