People v. State

fairly undermining public confidence in the administration of justice

Sorry, but Justice is all there is

July 31, 2010 By: John Kindley Category: Uncategorized

It appears that before I address the subject of the title of this post it’s advisable to say something in support of my right to even weigh in on such a weighty topic. There’s a misconception out there that I’m a crazy kid. Crazy is in the eye of the beholder, but, alas, a kid I’m not. This Michaelmas I’ll be forty-one years old. Sure, I’ve only been licensed to practice law since 1999, and I’ve only been regularly practicing criminal law for a couple years. But when I’ve locked horns with self-styled real criminal defense lawyers (“RCDLs”) it’s not been over the best way to try a case. Rather, it’s been over more philosophical matters.

Now, it may be true that, as H. L. Mencken observed, “Philosophy consists very largely of one philosopher arguing that all others are jackasses. He usually proves it, and I should add that he also usually proves that he is one himself.” Nevertheless, ideas have consequences. Those who’ve been disagreeing with me evidently think so too, because they’ve opined that my ideas are a menace to society so long as I’m practicing criminal defense. Granted, experience has a lot to do with the merit of one’s ideas. Ideas are formed by our experience and our reflections upon our experience. As one of my crusty old philosophy professors was fond of observing, there are 12-year old math prodigies, but you’ll never meet a 12-year old philosophy prodigy. But I wasn’t born yesterday. And the question, for example, of whether Clarence Darrow was right or wrong when he claimed “there is no such thing as justice, either in or out of court” is not the exclusive domain of RCDLs.

What has so offended RCDLs, though, is my philosophizing about criminal defense, and specifically, my continued bristling at the idea that the job of the prosecutor is to “do justice,” while the job of the criminal defense attorney is merely “to defend.” I’ve suggested that we too, even more than prosecutors, are the guardians of justice. And what doubly offends RCDLs is that I suggest this while having a tiny fraction of the experience they do actually defending those accused of committing crimes. Never mind that I’ve cited a couple old dogs in support of what seems to me true. Never mind that if I am not qualified to opine on something so basic and fundamental, to express what seems to me true when what I’ve expressed has not to my mind been convincingly and logically refuted by anyone, then I might as well hang up my blogging spurs for the next ten years.

The RCDLs have made it clear why they think my idea is not only wrong but dangerous. (They think I might undertake the representation of a client and that the zealousness of my representation might be affected by whether I personally think the client “deserves” what the State is trying to give him.) So why do I think that the contrary idea is not only wrong but dangerous? Well, for starters prosecutors have been known to argue, or to try to argue, to juries that their job is to “do justice” while the job of the criminal defense attorney is merely “to defend.” Presumably, they wouldn’t make the argument if they didn’t think it would help the prosecution. That argument, when it’s been attempted, has been ruled improper. But if the “truth” of the prosecutors’ assertion is conceded even by defense attorneys, then it’s only to be expected that this “truth” will filter down to the public at large. The people who embrace this “truth” will sit on juries, and will be predisposed to trust the prosecutor and not us. They will annoy us with the “cocktail party question.” (To wit, “Suppose your client confessed to you that he in fact committed the rape and murder of a small child that he’s accused of committing. How could you in good conscience try to get him off scott free?”) They won’t vote in favor of increased spending for public defenders offices, let alone “public defenders for all.” If they’re in law school, they’ll be less likely to go into criminal defense. If they become prosecutors, they won’t respect criminal defense attorneys. If they become criminal defense attorneys, they might wake up one day and wonder what the hell they’re doing with their lives.

It’s understandable why “Justice” is a dirty word among criminal defense attorneys. It connotes “punishment” and “retribution,” when in fact the propriety (i.e. the justice) of punishment and retribution is itself open to debate. I myself see the merit in the argument that the desire for punishment and retribution is something we should excise entirely from our souls and our society, though I’m not persuaded by it. But Justice is simply people getting whatever it is they deserve. What exactly it is that people in general or a group of people or a particular person deserves is famously fodder for passionate disagreement. But the very fact that we are constantly trying to persuade each other that our sense of what we or other people deserve is right implies at least some faith in the existence of a common and objective touchstone. There may be rare exceptions, but most people today agree that no one “deserves” to be enslaved, and no one “deserves” to be the master of slaves. When we argue for the repeal of what we think is a bad law (e.g., the war on drugs), we are typically appealing to our common sense of justice, of what each of us in society deserves. When an advocate argues for abolition of the death penalty, presumably the advocate believes, and is appealing to our common sense of justice to persuade others to believe, that no human being, not even the most vicious killer, deserves to be killed by the State in such a manner (or that even if he does the State doesn’t deserve to kill him). When Clarence Darrow argued that Leopold and Loeb shouldn’t be executed because their evil actions were the product of their privileged upbringing and they weren’t responsible for them, he was hoping the judge would embrace Darrow’s own sense of reality and justice — a determinism according to which none of us deserve or are responsible for anything.

I suppose one could say there’s an ethical problem if I wasn’t willing to make on behalf of a client an argument (e.g., like Darrow’s on behalf of Leopold and Loeb) which I didn’t myself believe in (because it didn’t accord with my personal sense of justice), contrary to the public’s common expectation that a criminal defense attorney will say any damned thing he has to in order to get his client off. A few points in response. It seems the advocate should take into account in choosing his arguments the likelihood that he will present more persuasively an argument he genuinely believes in than one he doesn’t genuinely believe in. Second, it seems an advocate must consult his own personal sense of justice in weighing what will likely strike a chord with his hearers’ sense of justice and therefore be persuasive to them. Darrow’s determinism might have been persuasive for a judge at the beginning of the 20th Century who was current with the extant intellectual fashions, but it would likely be far less persuasive for a jury today. Third, just because I’m not persuaded by Darrow’s determinism doesn’t mean I think his argument has no merit and no logic to it whatsoever. I could make a similar argument in good conscience if I had to on behalf of a client, if nothing better was available.

5 Comments to “Sorry, but Justice is all there is”

  1. The reason this is troubling to me is that, speaking as a non-attorney (who could theoretically be a potential client), I don’t want my lawyer to be concerned with justice. I don’t want a lawyer who will choose his arguments based on his own personal sense of what I deserve – because who are you to decide if I’m guilty or innocent? What if you’re convinced that I’m guilty, and I’m not?

    “Justice” is far too nebulous a concept for anyone to take that responsibility on himself. You say, “the very fact that we are constantly trying to persuade each other that our sense of what we or other people deserve is right implies at least some faith in the existence of a common and objective touchstone,” but I don’t think anyone who’s thought about the concept philosophically believes that there’s an objective definition of justice that can be commonly agreed upon. Ultimately, we all have a different sense of what justice really is, based on our own subjective experience and perspective. That’s the reason we have a legal system – because justice is such a slippery concept that we need a dozen jurors, at least a pair of opposing attorneys, and a judge in order to try to come up with an approximation of it.

    The last thing I – as a potential client – would want from a lawyer would be for him to have his own sense of justice on his mind. Our system is structured in such a way that the defense attorney’s job is to not seek his own definition of justice – if we need to have at least 15 people in order to try to pursue it, then simply being one of those people is acting in the interest of justice. What the defense attorney may think or believe about what’d be just for the client isn’t a part of it, because that’s not how our system is designed.

    • John Kindley says:

      We all have a sense of justice. It’s unavoidable for a moral human being. We’d all be pissed off and feel violated if we came home and discovered our house had been burglarized. All of us would want our property returned, and almost all of us would want the burglars to suffer some consequences. Why, apart from money, should I be motivated to work hard to get a client who I (hypothetically) know raped and murdered a child acquitted? I’ll tell you why. Because I believe it’s JUST that I do so. That is, I believe everybody accused of a crime DESERVES due process. And I believe everybody accused of a crime deserves due process BECAUSE many people accused of crimes DON’T DESERVE what the State is trying to give them. (Note that I haven’t claimed to know what anybody accused of a crime deserves beyond due process, although I have had several clients who I strongly believed with every fiber of my being didn’t deserve what the State was trying to give them.)

      Now, I might choose not to represent in the first place somebody accused of such a crime, and that choice might be influenced by my own sense of justice, and/or my own estimation of the potential client’s guilt, and/or my own sense of the value of my own time. And I don’t think there’d be anything unethical about that.

      The following article expresses very well and closely what Ive been trying to say:

      • Aside from the curiosity of finding anything of value in the work on ethics of the ethically challenged and really dumb Jack Marshall, you’re really digging yourself a serious linguistic/philosophical hole here. And of course, the basic rule when one finds oneself in a hole is to stop digging.

        You say in the post that, “Justice is simply people getting whatever it is they deserve.” Then you give a list of things not deserved. People don’t deserve to be enslaved or to enslave. They don’t deserve to be killed by the state which doesn’t deserve to kill them. People don’t, in fact, according to Clarence Darrow you say, deserve anything at all (including justice, I suppose, which is what they deserve – or maybe they get justice as soon as they get nothing?). Now you say that what they deserve (and what you’d been trying to say is that they deserve due process. And I suppose it follows that justice is simply due process.

        Of course, if the goal of criminal law were to ensure due process, there’d be no need for that whole proof-beyond-a-reasonable-doubt thing, and no need for your concern with protecting the guilty so that the innocent would be protected. All you’d be after is ensuring that people get the right procedures – regardless of what happens. But you’ve said repeatedly that isn’t what you do. You work for acquittals – which aren’t procedures at all, and are only sometimes a by-product of them.

        Of course, what started this, and what you’re disputing, is that prosecutors are to seek justice and defense lawyers are to defend. But the job of the prosecutor isn’t to seek due process, it’s to effect something we’ve clumsily chosen to call justice but which we mean (in that very limited context) “not convicting people the prosecutor thinks are not guilty” and convicting people according to the rules. Nor is the job of a defense attorney to seek due process. Indeed, we may want our clients to get due process (often we want them to get more process than is “due”), but our job is surely to get them acquitted or if not to get them the least conviction and sentence possible. Due process is a means to that end. it isn’t an end in itself.

        The ethically troubled Jack Marshall may or may not think due process is a positive thing, but while he believes it’s necessary to the system that someone seek acquittals (or, if that can’t be obtained, lesser convictions), he finds it ethically problematic to do so except for people he’s determined are factually innocent. He’s given up criminal law, he says in the solipsistic article you urge, because it can’t really be done with the purity of ethics he insists on.

        But that’s fatuous claptrap, and you know better. The problem is that you keep mixing up abstract philosophical ideas of justice and desert with concrete applications of those terms in criminal law. But they aren’t the same and can’t be mixed without total confusion. Look at what you said: The accused deserve due process but may not deserve punishment. Those simply aren’t the same sorts of deserts.

        So stop digging. You need a ladder, not a shovel.

        • John Kindley says:

          Maybe I wasn’t as clear as I could have been.

          First, I didn’t “give a list of things not deserved.” Rather, I acknowledged that people notoriously disagree about WHAT is just and unjust, while pointing out that the very fact that they nevertheless make the effort to persuade others over to their point of view implies their belief in an objective truth by which what is just and unjust may be determined. I expressed no opinion in this post, e.g., on whether the death penalty is just or unjust.

          Second, I didn’t say that “justice is simply due process.” I said that everybody accused of a crime, whatever else they might deserve (e.g., incarceration, hypothetically), deserves due process, which includes the whole proof-beyond-a-reasonable-doubt thing and the right to counsel. This is how I can personally justify zealously representing and trying to get acquitted someone who, apart from my role as his attorney, I might think deserves a good long term in prison or worse. This of course doesn’t guarantee that the outcome of such due process will be just, will be what the defendant deserves. Read what Clay Conrad wrote in the comment thread of this post at Bennett’s blog:

          I agree with Clay.

          BTW, I came across the article by Jack Marshall and substantially agreed with it before realizing it was by Jack Marshall. I wasn’t going to remove my link to the article just because it was by Jack Marshall.

  2. Norm Pattis says:

    I take my bearings from my client’s sense of his own interest and am limited only by rules of professional responsibility. I don’t take a case, or I get out of a case, if I cannot get behind the client’s goals. I view justice as a derivative product of conflict, but not something I seek. Frankly, I am not at all confident what justice requires. Frankly I would not be troubled in the least by getting a man who has done awful things set free. The law is not about morals; that is for priests and shrinks. The law is about protecting liberty and keeping the state in check. Those are political goals. The law is a very limited enterprise. I enjoyed your earlier post on Bugliosi and am reading the book you recommended. VB is free to select clients anyway he likes. I was surprised to see that he has no fear of the state and that he confuses law and morals.

    As for the RCDLs: don’t change a thing. From bags if gas comes only gas


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