There’s an interesting discussion going on in the “blawg-o-sphere”. I don’t normally chime in — in fact, I never have chimed in on blog debates about criminal defense. However, this is an issue that bothers me because I am seeing more and more people masquerading as lawyers who take money from their clients, but then place some other interest above that of the client.
The bottom line is: what is the proper role of the criminal defense attorney, particularly where winning for his client could mean hurting the greater society or doing something distasteful? It appears that this debate really started when an attorney, Charles Thomas, posted his Don’t rape blog post and took the position that he will not “slut shame or victim blame” when defending against sexual assault allegations.
Respectfully, Mr. Thomas, if you can ethically and legally present an effective defense involving “victim blame or slut shame”, that may just be what you need to do. If you’re not willing to do this, I suppose that’s fine as long as you get informed consent from your clients before you become their lawyer.
One of my favorite quotes regarding the role of a criminal defense attorney comes from a dissent by Justice White in US v Wade, 388 US 218 (1967):
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.
As Justice White pointed out, our role isn’t to seek out justice. More often than not, I believe we find justice in front of a jury. But it isn’t my job to make sure that the guilty are punished or that the complainant sleeps well at night. My job is to defend my client. In that role, I’ll do anything that’s legal and ethical without regard to whether it makes people feel warm and fuzzy.
