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.