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.