What Strike-Lawyer said re: The Defense Function
Apparently I was wrong when I recently wrote that “everybody disagreed with . . . my skeptical challenge to the common wisdom regarding the role of the criminal defense attorney relative to justice and the role of the prosecutor.” In a post critiquing Mark Bennett’s recent post about The Defense Function, the anonymous author of Lawyers on Strike, noting my comment on Bennett’s post, writes:
Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”. I’ve weighed in on that debate obliquely: here and here, for example. And here.
Does this segue into The Question? Maybe. Bennett seems to think so.
(The Question is: how do you defend people you know are guilty?)
The quality of mercy is not strained, but the demand of justice is that wrongs be paid for. Can you rationally try to balance mercy and justice? Sure. Will people differ on where or how that balance can be achieved? Of course. Can you be perfectly merciful and perfectly just at the same time?
No. Not in this life, anyway.
How simple, then. There is plenty of room to defend the “guilty” without “setting aside” one’s own sense of right and wrong, with due regard for one’s limitations in the system. It is completely unnecessary to go on from there and assert that “justice”, and for that matter “mercy” and “love” and a million other unseen but real things either do not exist or are meaningless and not part of “what we do”. But that’s what Bennett and Greenfield argue.
Why? They have reasons of their own, obviously. I suspect I may know some of them. The others probably don’t matter.
Why do I care, then?
Bennett and Greenfield are prominent blogging lawyers of the criminal defense variety. They maintain this bullshit – and it is bullshit, since even they don’t believe it – to the detriment of themselves, their clients, and other CDL’s and their clients. As I have noted before, they justify Judge Jacobs‘ and other judges’ and jurors’ views that CDL’s are irresponsible, wrongly hyper-partisan, self-interested and untrustworthy.
Put another way, and as I believe attorney Kindley has noted, they cede the moral high ground to prosecutors and judges in advance. And then – somewhat irrationally – they complain when prosecutors and courts commit injustices over the objections of CDL’s because they never seriously listen to CDL’s.
Posts in which I staked out the position to which Strike-Lawyer is referring are here and here. The most concise statement of my position is here:
Law is defensive. Its purpose is to prevent injustice from reigning. The responsibility of the prosecutor within the Law is to defend the rights of all, and thereby to prevent injustice from reigning. The responsibility of the criminal defense attorney within the Law is to defend the rights of his client, and thereby to prevent injustice from reigning.
As for the sanity of Strike-Lawyer’s underlying mission, I invite readers to Google “Lawyers on Strike.”
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