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Saturday January 22, 2022

Defending the guilty

October 03, 2021

Sampson Brass, the crooked lawyer in Dickens’ ‘The Old Curiosity Shop’ quips that “if there were no bad people, there would be no good lawyers.” It’s a witty aphorism, and is in line with the general public sentiment when it comes to lawyers. From Jesus, in the New Testament, declaring “Woe to you lawyers” to Al-Pacino, playing a lawyer in ‘The Devil’s Advocate’, turning out to be the actual devil – it isn’t particularly subtle.

Generally, with these things, the stakes are low. From accountants to zoologists, every profession is the butt of its own sub-genre of caricatures and jokes. Still, few have the popular appeal of lawyer-jokes. But the stakes begin to acquire considerable gravity as you near the domain of criminal justice. And as the intensity of the crime begins to rise, the levity begins to dissipate.

Finally, you’re left with that one question that’s on everyone’s mind – and it’s certainly no joke. How can you, in good conscience, defend someone who’s guilty?

The quickest answer to that is to say you can’t know for certain that they really did it. It isn’t exactly a cop-out, but if we’re thinking about this, let’s engage with the real question. And let’s say we aren’t talking about a speeding ticket, but one of those crimes that actually prompt the question.

Stanford Law School’s Barbara Babcock breaks the question down well enough to reproduce unadulterated. “In all its components, the question is: first, how ‘can’ you when you know or suspect that if you are successful, your client will be free to commit other murders, rapes, and robberies? Second, how can ‘you’ defend a guilty man - you, with your fancy law degree, your nice clothes, your pleasing manner? Third, how can you ‘defend’ – move to suppress the evidence of clear guilt found on the accused’s person, break down on cross examination an honest but confused witness, subject a rape victim to a psychiatric examination, reveal that an eyewitness to a crime has a history of mental illness?”

At the heart of all these questions is the notion that a criminal defence lawyer is defending the crime itself. And even if you don’t end up equating the actions of a lawyer with their client, it’s hard to shake the feeling that they’re still aiding the act in some way. This, admittedly, is no different for many lawyers.

Many will respond that it isn’t just the case that they’re not defending the crime, they’re not defending the criminal either. And that what they’re really doing is defending the system. This is usually peppered with phrases like ‘due process’, ‘the presumption of innocence’ or ‘the right to representation’.

It’s what Babcock calls the Garbage Collector’s Reason: “Yes, it’s dirty work, but someone must do it.” That, in and of itself, is unconvincing to most. And that is completely understandable. Lawyers aren’t born enamoured with fairness in trials, or an innate appreciation for due process; they only really absorb it over years of seeing the system cut both ways – for the guilty and the innocent. And even then, many don’t.

If you take that context for granted, all you’re really saying is that ‘someone’ has to do it, not that someone ‘has’ to do it. ‘Someone’ had to run the trains in Nazi Germany, as well. But that didn’t absolve them of the charge that the destination was a gas chamber.

But ‘having to do it’ can’t mean being obligated to do it for some professional obligation, either. The UK has the cab-rank rule, which means lawyers can’t refuse a case on the basis of how they feel about the crime or the criminal. That may conveniently pass on some of the moral burden, but choosing to be part of that system is still your decision.

Explaining why someone ‘has’ to do it means explaining why it is important for everyone. In terms of proportion, alone, due process ends up mattering more to non-lawyers. If you want to find someone with an even deeper appreciation for due process than a lawyer, go ask the person they’re representing at trial.

Of course, they may have not done it, to begin with. But we began with the assumption that they did, in fact, do it. Due process is still important. They may have committed only some of multiple crimes that they were accused of. Or they may have committed all those crimes, but still be entitled to a lesser sentence. It doesn’t take wearing a black suit to work every day to understand all this.

But, to be clear, this isn’t to say that every criminal defence lawyer is the realisation of Atticus Finch. Many are willing to do horrible things to win a case. Many are motivated, mainly, by money. But whether or not they go home with a paycheck doesn’t affect the fact that the system exists for everyone, not just to serve lawyers.

If that reasoning clicks with you, then you may be relatively open to Alan Dershowitz’s spin on the Garbage Collector’s Reason. Writing in ‘Letters to a Young Lawyer’, Dershowitz likens a lawyer to a doctor in the ER, “whose only goal is to save the patient, whether that patient is a good person or a bad person, a saint or a criminal.”

If you’re familiar with Dershowitz’s putrid pantheon of clients (OJ Simpson, Trump, Weinstein, Epstein etc), you likely couldn’t care less for his opinion. But the whole idea is that these principles can’t just matter when they’re being invoked by – or for – someone you like.

Dershowitz reminds us that not too long ago, the McCarthy era saw lawyers vilified for defending people accused of sympathies for communism – just as they were once castigated for defending women accused of witchcraft. And we would do well to pay attention, because it is still our present. When due process is applied only when it is palatable to the majority, lawyers are too afraid of being shot to defend five-year-olds accused of blasphemy.

Ultimately, due process is just as much about the innocent as it is about the guilty. And it may well be more about non-lawyers than it is about lawyers. When stripped to its essence, due process – even in cases that are seemingly no-brainers – is some form of Blackstone’s ratio: “that it is better that ten guilty persons escape than that one innocent suffer.”

And, here, we encounter a barrier that many lawyers believe can simply be explained away. As if understanding why due process will mean you, too, would represent a murderer. Not so for Babcock. Though she is able to articulate the question with much clarity, she is quick to concede that despite answering it countless times, she has failed to do so to the inquirer’s satisfaction – and hence, her own. Over time, her stock-answer withered to: “Well, it’s not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soulset.”

And many people stay away from criminal law precisely to avoid such moral conundrums. But that choice isn’t necessarily the more principled one. Indeed, in one sense, it’s just the easier thing to do. The moral onus can just as easily be flipped: if you are so sure a person is guilty, then why not ensure that they get what they deserve by taking on the case and doing a terrible job? If the accused isn’t a one-time criminal but someone who displays a pattern of behaviour, then making sure they lose the case may even prevent future crimes.

If you agree that due process is important but are appalled at morally ambiguous questions in a cross examination bringing a victim to tears, the system might benefit from more ‘good’ people performing them. In philosophy’s notoriously knotty Trolley Problem, walking away from the lever when there’s nothing to lose isn’t generally hailed as the morally superior choice.

And even that alternate choice is, often, tainted by its own share of sin. It’s just less obviously visible – shielded by prodigious corporate structure. From beverage companies responsible for the murder of union leaders in Africa to manufacturers of construction equipment who provide Israel with the bulldozers that destroy Palestinian homes. And those companies have more than just a legal department.

Quite often, obviously amoral choices are just that. But, at other times, they are genuine attempts to be consistent – just within a different moral system. It does well to appreciate that difference, just as it does to understand that neither can be forced upon another.

Understanding, too, comes with its limits. Even Dershowitz’s doctor in the emergency-ward analogy doesn’t hold for everyone. As the Chilean dictator, Pinochet lay dying in a hospital bed, some rejoiced. Others feared that this meant he would die ‘an innocent man’. Amongst those who see justice in death, some see death only at the hands of the hangman. To others, justice is bigger than that.

But, in the end, there’s only so much you can control. It’s not without consequence that, though hangmen were once hailed as celebrities, in the popular imagination, they are remembered with a hood over their faces.

The writer is a lawyer.

Email: salaar.khan@columbia.edu

Twitter: @brainmasalaar

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