30 November 2009

Is it Intrinsically Noble to stand between the Reviled and society?


BUT, that doesn't make a defense attorney's job any less noble.

Let's be clear here, we're not talking about people charged with something he didn't do; representing that person is clearly noble. We're not talking about someone overcharged or in danger of being over-punished; representing that person is noble. Nor are we talking about representing the immature, the mentally ill, a person who steals to eat. It is clear that standing between society and these people is intrinsically noble.

What we're talking about here is a Reviled One. Picture the most deservedly hated person you can think of. This is the person we're talking about (someone like the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday). He is a member of the small group of deservedly reviled and there is nothing intrinsically honorable or or noble in protecting him from society.

And yet, the defense attorney who takes that job and does the absolute best he can in defense of that person is noble.


(1) Because these cases are the ones which pose the greatest danger to society. If there isn't someone out there fighting tooth and nail for Reviled One these cases will inevitably end up with losses of rights and protections. These are the cases wherein everyone is going to cut corners, ignore rights, and crush protections in order to get to vengeance as quickly as possible. Someone has to stand in front of that bulldozer and frustrate its destruction of the rights and protections of all on the way to destroy the Reviled One.

(2) Because there is no way that society can be just if the Reviled One doesn't have the ability to access, understand, and properly avail himself of all the societal protections. A defendant cannot really represent himself well in court. Even if he is bright, he isn't experienced. Legal research is fairly arcane and even if he has access to a decent law library in the jail (unlikely) he is almost assuredly going to miss important things. He doesn't know written court rules. He definitely doesn't know the unwritten rules of practice, which vary depending on State, region, courthouse, and judge. Without an attorney even the brightest, most capable person is not going to receive a fair trial. By giving Reviled One all the access to laws, rules, procedures, and protections he should have the defense attorney provides an honorable and noble service.

Defense attorneys do serve justice. One could even say that they "seek justice" just as much as any prosecutor does. And I now say it. Defense attorneys seek justice. It's not the straight forward justice that prosecutors enjoy. It's a more esoteric form. Defense attorneys advocate for short term injustice and in the process they assure societal justice in the longer term. That's either seeking justice or having it occur as an unintended, collateral consequence. Forgive me if I'm a bit of an idealist, but I choose to believe that defense attorneys are seeking overall justice, not just providing it by accident.


Rick Horowitz said...

I've written about this in a way that might make some people think I would disagree that defense attorneys seek justice. However, that's not an entirely accurate picture. My "real" view -- or should I just say my "unqualified" view -- is more like yours, with one exception.

I disagree that "[d]efense attorneys advocate for short[-]term injustice...."

Of course, this gets us into possibly-semantic quibbles over "the meaning of 'justice.'"

Nevertheless, I agree with pretty much everything else you said here. Defense attorneys have an assigned role to play in the system. That role is not to decide that someone is guilty and then, having decided that, refuse to vigorously defend them. (For the record, I know you didn't say it was; I'm laying out what I think.) The role is to make sure, as I've written extensively on my blog, that the State's case is run through the crucible of adversarial testing.

Unless defense attorneys always put in the hard work of fulfilling their roles, there is no way the system, as a whole, fulfills its role.

And, while the power of the State demands the balance that comes when prosecutors consciously aim for justice, Justice is the reason for the existence of the system, not of any specific lawyer or class of lawyer.

Orlando Attorney Shane Fischer, P.A. said...

What a great way to say it "Defense attorneys advocate for short term injustice". Your post was inspiring. Your average person sometimes just can't understand why an attorney would defend a person who has done terrible things, but this blog post would go a long way to making it clear.

Joshua said...

I agree with most, if not everything, in this post. I do think that it can largely be argued with based on a person’s subjective definition of “justice.” I don’t recall where I first came across the quote, nor have I read the novel from which it came, but it seems true and fitting to many arguments about justice and law and right and wrong. The quote goes, “Justice? You get justice in the next world; in this world you have the law.”

I would think this would be a strong statement to be made by any criminal defense attorney who finds himself face to face with someone who doesn’t understand how he can stand in court for someone who he knows, or even suspects, is guilty of a crime. Every defendant is entitled to full protection and procedures afforded by the law. In the case of a criminal defendant whose case is dismissed or who is found not guilty, perhaps blame would be better directed not towards the defense attorney who revealed an error in police procedure, or established reasonable doubt, but rather directed at the prosecution and police who failed to adhere to legal procedures, or failed to present a case strong enough to remove reasonable doubt from a jury's mind.

My hat’s off to the defense attorneys. I’m sure it’s a difficult job, and one that few people, aside from the accused, fully appreciate.

Disability Insurance said...

Great article, very well written and informative. I think that defending a reviled offender is somewhat noble. As long as the attorney isn't taking the case as a publicity stunt, they are obviously taking a case where the odds are not in there favor. Putting one's neck on the line like that is noble in itself.