Representing the Guilty

While catching up on my blog reading recently, I came across a recurring topic in my field that I’ve yet to address here.


In this instance, Keyana, a self-described aspiring criminal defense attorney, explores her apparent belief that there is something inherently wrong with representing people who are “guilty as charged.” The solution, she exposits, is to cast one’s role in terms of seeking justice. Then one is free to fulfill the role of criminal defense attorney “in good conscience.”


Her essay ran afoul of Scott Greenfield, a New York criminal defense attorney whose sharp wit is generally on-target but who pulls no punches when it comes to his subjects’ feelings. Unlike Greenfield, who lambasted the baby lawyer for her ignorance, I’m not particularly offended by Keyana’s essay. She’s merely expanding on a viewpoint that I’ve encountered  over cocktails for more than a decade. But I agree that she’s dead wrong. She’s also missing the big picture.


In the first place, the criminal defense attorney’s role is NOT to seek justice—that’s the prosecutor’s job. The criminal defense attorney must be a zealous advocate for her client’s interests within the bounds of the law and the rules of professional responsibility. PERIOD. Trying to spin that into a mandate to seek justice runs the serious risk of undermining your client’s interests when they run counter to the common good. That could actually get you disbarred, and rightly so.


Having worked both sides of the docket, I can comfortably say that prosecuting is easier. One reason is that a prosecutor rarely has to see the big picture in order to understand why what she’s doing is good and important—that’s obvious.  But for criminal defense, one may have to grasp the bigger picture to see the nobility of the profession. That can be difficult for newbies, particularly in those cases where they represent the “wretched refuse of [our] teeming shore.”


The bigger picture is that, in doing our jobs to the best of our abilities, criminal defense attorneys protect the innocent by policing the police. Believe it or not (and this can be a very hard truth for newbies), some cops lie, cheat, and, yes, even arrest and hurt innocent people. Some prosecutors and judges let them get away with it and some even participate.  More often, they simply don’t know about it and have neither the time nor the inclination to investigate the complaints of the accused.


But the point is that, if defense attorneys aren’t doing their jobs and getting cases thrown out when they suck or the cops break the law, then nothing will keep bad cops in line, which is a very scary prospect. Bad cops are worse than ordinary criminals because they have the full force of the government behind them to oppress the people (yes, even innocent people) who can bring their criminal activities and other misconduct to light.


A final point that bears mentioning…There is a huge range of punishment for most offenses. Sometimes a person is guilty of a criminal offense but nonetheless undeserving of the relatively harsh punishment the prosecutor seeks. The prosecutor may be unaware of the mitigating circumstances, disinclined to believe the defendant, or biased against someone accused of this type of offense, regardless of the circumstances. Such a dendant is “guilty as charged” but nonetheless entitled to a fair punishment, i.e., a punishment that accounts for the mitigating circumstances. That’s unlikely to happen without the assistance of a criminal defense attorney.

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