As Lew Rockwell writes (in a post quoted by the Atlantic):

I wonder: even if this woman were guilty, what is to be gained by turning her over to the greatest killing, torturing, and looting machine on earth, government, as if it were some moral authority? We need private judicial proceedings, restitution and not retribution, and not exaltation of the dullards and thugs who compose government. It is never right for them to judge anybody on anything.

This attitude is consistent with, rather than contrary to, my view (for which I’ve been excoriated a fair amount in the criminal defense blogosphere) that the role of the criminal defense attorney is to “do justice,” notwithstanding my acknowledgement that losing for those we think innocent is more devastating than losing in general.

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

— Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)

Prosecutors may read this famous opinion differently, but I read it to say that the mission of defense counsel is to do justice.

Justice is the absence of crime. Convicting the innocent is a crime if ever there was one. The “justice” of prosecutors is justice only in a derivative sense. It’s the use of punishment — which itself outwardly resembles crime — to try to prevent or deter future crimes and/or somehow negate or provide satisfaction for crimes which have already occurred. Its purpose is to approximate so far as possible justice in its root sense, but historically hasn’t gotten us very far.

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.”