People v. State

Mark Bennett, riffing off a post Norm Pattis wrote about Gerry Spence’s claim that he had never lost a criminal case, muses:

I wonder: what if a criminal defense lawyer took only cases that she could win?

. . .

She would not spread the word that she took only cases she could win; rather, she would let it be known that she had won all the cases she had taken. Once people knew that hiring her meant winning their cases, she would be highly sought-after.

. . .

People would throw money at her for the privilege of being represented by her. She could charge whatever the client could afford. She would make more money while taking fewer cases.

In a comment to Mark’s post I quoted something Vincent Bugliosi wrote in And the Sea Will Tell (his account of his successful defense of Jennifer Jenkins in the Palmyra Island murder case). Basically, Bugliosi’s policy at that time as a criminal defense attorney was that he would not defend someone charged with a serious violent crime if he believed they were guilty (unless there were substantially mitigating circumstances), and he only agreed to represent Jenkins after convincing himself of her innocence. Rather than copy here what I quoted at the link, here’s a little more of what Bugliosi wrote by way of explanation:

I simply have no motivation whatsoever to knock myself out working a hundred hours a week, as I frequently do, trying to figure out a way to get some murderer off. . . .

In a nutshell, although I’ve never been a law-and-order fanatic, I do believe that those who have committed serious crimes should be severely punished, and I do not want to be in a position of actively seeking to thwart this natural justice.

Mark replied to my quotation of Bugliosi, in part, by opining:

[R]epresenting those whom God has forsaken is what separates the criminal defense lawyers from the unreformed ex-prosecutors or, in other words, the men from the boys.

But this “attorney for the damned” rationalization only gets you so far. It is obviously true, for instance, that private defense attorneys prefer to represent clients who can pay their fees in full, and will decline to represent those who can’t (although in a better system this wouldn’t be so much of an issue). We regularly and necessarily pick and choose our clientele by this base material standard. Now, suppose I had the luxury of a Bugliosi, who probably had in his day as a criminal defense attorney tons of defendants with cash in hand asking him to represent them, to pick and choose my clients. Suppose I had room in my case load for only one more client. Without any doubt whatsoever I would choose to represent, and spend the scarce hours of my life on behalf of, a defendant like this (who I in fact did represent) over a defendant like this, or a Leopold and Loeb.

Is such a preference for the wrongly-charged innocent defendant over the more apparently “damned” defendant ignoble? Is it somehow cowardly? Is it intrinsically contrary to everything a criminal defense attorney should stand for? I think not. There’s a reason why criminal defense attorneys are heard to say “God save me from innocent defendants.” There is still a chance (one I hope and pray is exceedingly small) that the innocent client I represented and mentioned in the previous paragraph could have the reversal of his conviction overturned by the supreme court. If that were to happen, there’s a very good chance that my disillusionment would be such that my days as a criminal defense attorney would be over. My life is truly bound up with his. If he spends the next 20+ years in prison, a part of my soul will be in there with him.

What Bugliosi wrote is undeniably heresy among criminal defense attorneys. It expresses a thought that might concern and turn off a lot of potential clients if we ourselves were to repeat it. But it’s important to realize that the essence of the thought is not bound up with what particular crimes in what particular circumstances Bugliosi himself would decline to defend. I imagine there are some defendants whom Bugliosi would turn down using his standard whom I, if money were no object, would represent for free, and vice versa.

Bennett closes the comment thread with this remark:

The more I read Bugliosi’s quote, the more it seems that he displays symptoms of ethical retardation.

For my part, Bugliosi is rapidly becoming a part of my own personal pantheon of legal icons. You’ve got to admire, or at least I’ve got to admire, somebody who writes things like this and this.

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