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“How could you defend someone you know is guilty?”

November 24, 2009 By: John Kindley Category: Uncategorized

Scott Greenfield takes a newbie lawyer to task for taking this question (posed to criminal defense attorneys at cocktail parties all the time) seriously and for offering an answer that Scott believes betrays a fundamental misunderstanding of what it means to be a criminal defense lawyer. The newbie opines that “an attorney’s ultimate goal must be to seek justice and not to simply win.” Scott explains that, to the contrary,

The fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law. Our duty is not to “do justice,” but to defend.  In contrast, the duty of a prosecutor is not to prosecute, but to “do justice.”  The duties are not opposite or co-terminus.

The distinction is that our obligation is to discredit a witness, a fact, an assertion, evidence, whatever is presented against our client, if we can within the bounds of the law, even though we know (or may believe we know) it to be truthful or accurate.  We will present any viable defense, regardless of our personal feelings about its true merit.  While we will never knowingly present false testimony, we will use true testimony to whatever benefit we can for our client.

Our function is to defend our client, no matter how horrific the crime or evil the defendant.  Our function is to use whatever tools are available under the law to obtain an acquittal, dismissal or the best possible outcome, whether based upon fact or law, whether capitalizing on a tactical error by the prosecution or advantage offered the defense. Factual guilt plays no role whatsoever in our duty to zealously defend our client. There is never a moral dilemma once a lawyer assumes the duty to defend.  Our function is not to judge, or impose our sensibilities or morality, but to defend.

I’m not convinced that the answer offered by the newbie was that far off from Scott’s accurate depiction of the duties of a criminal defense attorney, was as wrong-headed as Scott found it, or was deserving of the scorn Scott heaped upon it. Scott apparently accepts the newbie’s notion that our goal as criminal defense attorneys cannot be simply to win at all costs, since (he writes) our defense of a client must be “within the bounds of the law” and we must “never knowingly present false testimony.” Moreover, there is a real sense in which criminal defense attorneys can lay as much claim to serving “justice” as prosecutors, although we go about it in entirely different ways. In fact, I recently had occasion in a closing argument to tell the jury (in a case where I was asking the jury to use their common sense and arguably to nullify, or at least to not interpret too literally, a statute on which my client’s fate depended) that “the whole purpose of our criminal justice system is to do justice, and justice is all that the defendant is asking for in this case.” Given the jury’s favorable verdict, I can surmise that the jury might have found this appeal by the defense to “justice” appealing. Don’t give my client any more than he deserves, I was essentially asking the jury (with the implicit understanding that I didn’t believe he deserved to be convicted of the felony charged). I left it to the prosecution to ask them not to give him any less than he deserved.

What, after all, does “an eye for an eye,” the paradigmatic principle of justice, mean? One thing it means is to forbid taking two eyes for one eye. It means not punishing excessively, which in some (or all?) cases means not “punishing” at all. Whatever punishment, if any, a particular defendant in a particular case might “deserve” (which only God Himself really knows), it is the job of the criminal defense attorney to push as far as he can towards less or no punishment (i.e., an acquittal), for less harm and less potential injustice to the client, and thereby to serve Justice for the client. Defend ‘em all; let God sort ‘em out. “Justice” is a big word that means and should mean a lot to a lot of people, including people who sit on juries, and I think it’s a mistake for criminal defense attorneys to publicly concede the entire field to prosecutors. In my estimation, Scott overreacted to someone else’s broader understanding of an abstract word that by its nature lends itself to differing understandings.

What’s interesting to me, though, is that there are certain crimes Scott himself believes so horrific that he will not in the first place assume the duty to defend a defendant accused of such crimes if he believes the defendant committed them: specifically, crimes involving sexual harm to a child, in which category he includes possession of child pornography.

I’m sure that Scott believes even such defendants are entitled to a defense. He’s simply recognizing, as he should, that his personal feelings about this particular kind of crime are such that he has no business taking such a case. But it’s fair to point out that the number of criminal defense attorneys who aren’t repulsed by this type of crime are probably few and far between. And it’s also fair to point out that crimes which are inherently repulsive to every decent human being are precisely the kinds of crimes laypeople probably have in mind when they ask us at cocktail parties (or in my case, beer-fueled poker games) how we could defend such crimes if we believed they’d been committed by our client.

Scott believes that the question in the title of this post

isn’t . . . a “tough question.”  Not for a lawyer.  Not for a criminal defense lawyer.

If anything, it’s a Rorschach test.  If you have to ask the question, then you shouldn’t be a criminal defense lawyer.  Probably not a lawyer at all.

Suppose we give the newbie lawyer whose blog post Scott found so objectionable the benefit of the doubt to which we should generally accord all people. Suppose she is as repulsed by sexual crimes against children as Scott and 99.99% of the population are. But suppose she also believes that everyone accused of a crime, including those most despised by society, is entitled to a defense, and that if no one who was revolted by such crimes defended those who’ve committed such crimes then very few attorneys would represent such defendants. Or suppose she is contemplating taking a job as a public defender or as an associate at a criminal defense firm where, unlike Scott, she would not have the luxury of picking and choosing whom she represents. Should she even take such a job? Would Scott, given how he feels about child molesters and possessors of child pornography? From that standpoint the question does seem a little tougher. How would she feel about getting a child molester off on a technicality, or about ruthlessly cross-examining a young victim she believed was telling the truth?

I concur with Scott in that the cocktail party question now strikes me as nonsensical, and the answer so obvious as to not be worth the waste of a moment’s thought. It’s annoying that people ask it. But there was a time, including after I’d graduated from law school, when considerations related to the question made criminal defense appear not very attractive to me. (I was more plaintiff-minded and dreamed of using the legal system to right wrongs and punish evildoers, not appreciating at the time just how much injustice is perpetrated by the legal system against criminal defendants.) It’s a fair and understandable and probably important question for an “aspiring criminal defense attorney” (as the newbie under fire in Scott’s post describes herself) to ask herself before she actually becomes a criminal defense attorney. I, unlike Scott, don’t think the answer she’s come up with thus far is that bad. And hopefully, by the time she actually represents a criminal defendant, she will have forgotten the question and the answer and will do her job with the dedication and commitment it deserves and demands.

9 Comments to ““How could you defend someone you know is guilty?””


  1. Read the posts again and see if you can figure out the monumental gap between the two views. Until you can, I urge you to refrain from representing criminal defendants.

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  2. John Kindley says:

    There are several sentences in her post that lend themselves to raising the hackles of an experienced criminal defense attorney such as yourself. But the practical conclusion she comes to in the context of the whole post appears sound. She seems to understand that as a criminal defense attorney if you can get your guilty-as-sin client off on a technicality then you must, and should. If you can get him acquitted by exposing the holes in the State’s case then you must, and should. She seems to have already resolved this “moral dilemma” satisfactorily, encompassing it within a larger conception of “justice.” That is, within this larger conception of justice there is no moral dilemma inherent in zealously representing a factually guilty client. (That’s not to say, though, that the career of a criminal defense attorney will be free of moral dilemmas.)

    Most of us aspire to do something meaningful with our lives, to serve something greater than ourselves. In the legal realm, “Justice” is the name we commonly give to our aspiration for the law, although it is admittedly a complex and slippery concept. (As other wags have pointed out, the very title of your blog is Simple Justice, so Justice presumably is something you value.) Why should prosecutors get all the respect and glory, when what we do is at least important as what they do to the Law and to the accomplishment of justice? We are indeed, or should be, more than hired guns. If I thought I could better further the cause of justice by being a prosecutor than by being a criminal defense attorney, then I’d probably want to be one. But I don’t. And for others coming to the same conclusion, it’s likely that reflections along the lines of those in the post under discussion will play a part in the process.

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  3. That’s not what she said, John. Like I said, read it again. If not, read Gameso, since his post is more about what was wrong with hers, while I only touched on it tangentially.

    Waste fewer words. Read harder. Think more.

    And don’t engage in speculation about the meaning of the name Simple Justice. You’re free to ask if you want to know, but don’t guess and then attribute your mistake to me. So far, you’re showing me again that you are still a very young, naive lawyer, and not ready to handle real people. And the prosecutor line in your comment suggests that you may never be suited to this work.

    Justice isn’t for defense lawyers to decide. If you can’ t understand this, or can’t live with this, you must find a new line of work. We defend.

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  4. Defending an accused within the parameters of “the system we have” (to badly quote Donny Rumsfeld) can happen while also protecting notions of justice.

    In your most recent post you said an unjust law is not a law at all — that’s almost got the point. An unjust law has no force of law, but it is still a law. It lacks moral force, because it is out of step with the morality of the people whose acts it pretends to govern/limit/confine. But it is still a law, on the books, and therefore must be accommodated by the lawyer. And by “accommodated” I mean addressed jurisprudentially, and then distinguished, made parallel/applicable, or outright dismissed from application — through legal reasoning and appeals to justice.

    If a man came to me confessing he’d been involved in the death of another, professing innocence of murder but guilty of an unintentional role in the other person’s death, I’d be working to ensure he didn’t get charged with any degree of murder, and working to distinguish manslaughter. But if later my investigation showed there was no accident and the fellow intentionally and cold-bloodedly killed the victim, I’d be forced to revisit my strategy and my representation of this client.

    The attorney-client relationship is two-way. If the client lies to you, you aren’t under some holy obligation to ignore the lie and continue trying to get the client off without punishment.

    You have to side with justice, with bringing your erstwhile client to justice. You can do this by talking to your client and telling him that the truth indicates he was culpable and the best you can do is mitigate the sentence.

    That’s your obligation.

    And no, I’m not a “newbie” lawyer, I’ve been practicing since 1989.

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  5. John Doe says:

    It seems interesting to me that defense attorneys would get so annoyed by this very legitimate concern regarding the ethical aspect of their employment. Of course, society at large has been trained to have certain expectations and make moral judgments in order to have law and order. So a rapist is repugnant. A child molest ruins lives. And yes, the average person has no idea what the law entails; and who doesn’t question the ethical nature of representing these types of people who make these types of life choices. That being said, I have nothing but admiration for the defense attorneys I have met. They are energetic, smart and amazingly committed to justice: for their clients. Non-judgmental too; I guess they’d have to be in order to do the job in the first place. To defend those who have noone to defend them; the most hated members of society; that, to me, is a form of heroism of sorts.

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    • John Kindley says:

      Honestly I’m not that annoyed by the question and I don’t get asked it all that often. It’s a good and legitimate question, as you state, and it has a good and legitimate answer.

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  6. Justin Ross says:

    I am sorry but I must take issue with both views. The newbies statement, “An attorney’s ultimate goal is to seek justice and not to simply win.”, doesn’t even answer the question. The statement itself implies that the defendant must be innocent because if they are known to be guilty then these two aspirations become mutually exclusive.

    Even worse is Scott’s view and you are too easy on him when pointing out his unwillingness to defend certain criminals. His entire opinion is based on moral apathy thinly veiled in a seemingly noble philosophy. He’s arguing that defending criminals is a noble duty and there is no place for judgement or moral standards. Yet, Mr. Scott will not represent certain criminals because he judges them to be the worst of the worst and morally reprehensible. Okay, but don’t then tell me there is no place for judgement or morality in a defense attorney’s job. At least be consistent. This flaw in his argument properly illustrates how Mr. Scott’s answer to this question is, by design, a carefully structured and eloquent philosophical paradigm which makes him and others like him justify and rationalize the amoral aspect of their jobs.

    The fact is the question is legitimate and the answer is far more complicated than any one thesis. Ask 12 defense attorneys get 12 different answers. It’s a mix of human nature, drive, moral integrity, money and a number of other human characteristics. But there is a reason why some very smart and talented lawyers choose paths other than criminal defense.

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  7. Great excuse for corrupt lawyers that only care about making money and not at all about justice. Fucking retard.

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  8. Thank you for your post. I’m not a lawyer, I’m a writer, but this is something I have wondered about. I think one especially good point in it is that a defense lawyer’s job is to defend. That is an important statement, even if you didn’t necessarily think that was the whole answer. I think if the defense attorney doesn’t defend to the best of his/her ability, that makes the justice system unbalanced.

    There have been plenty of people convicted of serious crimes that were later exonerated after serving hard time. It could be that their lawyer thought they were guilty too and did not pursue their defense like they should. Not only was the person innocent, but whoever did the crime got away with it, so two injustices were permitted to happen.

    It is the prosecutor’s duty to present the best case he/she can if they think the person is guilty.

    The judge balances the sides and make sure the proceedings are legal. If one person is slacking, then justice is not being served.

    To defend a person who did something abhorrent in society and to a lawyer’s own sense of what is right, would take a very strong person who really believes in the importance of his/her profession.

    Everybody says lawyers are in it for the money. That seems funny to say that about a criminal defense lawyer. It seems to me, there are plenty of easier ways to make it than that.

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