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The Fundamental Principles of American Justice

Scott Greenfield’s blog, Simple Justice, is probably the only legal blog where I try never to miss a post. If I fall behind, it bugs me, and when I get the chance, I’ll catch up by spending an hour or more reading every post I’ve missed. One of these days, I’m going to continue digging back into the older posts, from before I knew about his blog, and read all those, too. This is not to say that I agree with everything he says, but everything he says definitely makes me think. And I agree with enough of it that I wish there was someone like him in my jurisdiction to mentor me. (Scott’s been practicing a lot longer than I have.)

One of his posts from today — A Blog That Shouldn’t — gives me the chance to talk more about something that matters very much to me. It concerns the question of defending guilty people.

I’ve touched on the topic before, particularly in The Crucible of Adversarial Testing and, to a lesser extent, its companion post, The Moshpit of Non-Adversarial Convictions. I’ve also discussed the difficulty of defending innocent people.

In The Crucible of Adversarial Testing, I noted that:

The reason I do what I do and the reason we need good defense attorneys is to ensure that we sacrifice neither the Truth, nor unarmed prisoners, to the State’s trained gladiators.

My hope is not that I “help put murderers and rapists back out on the streets,” but that because I do what I do — in the words of Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit — “justice will emerge from the forensic duel in the courtroom.” (Irving R. Kaufman, “Does the Judge Have a Right to Qualified Counsel?” (May 1975) 61 A.B.A. J. 569, vol. 61, p. 570. …)

The defense of guilty people is something even many criminal defense attorneys have difficulty thinking about, much less doing. I personally think it plays no small part in helping those bottom-feeders contract attorneys I’ve seen who handle their cases in assembly-line fashion. After all, if your clients are guilty, what difference does it make if you line them up outside the courtroom, explain certain things about their rights to them en masse in legal terms they may or may not understand, taking no questions, and then turn to each one individually — not even separating them from the group for privacy! — and tell them the “deal” you got for them, then hand them a form to read and sign? Hell, if they didn’t want a defense attorney like you, they shouldn’t be out committing crimes, right?

Getting back to Scott’s post, Scott had appropriately criticized a law student who tried — and failed — to address the question of how (or why) one defends guilty people. Scott did not comment on what I consider the core failure of the answer. The core problem is in the student’s statement that:

It’s the attorney’s duty to present their client’s side of the story to help facilitate a fair outcome.

No, it’s not. At least not in the practice of criminal defense. (I don’t think it is when representing defendant’s in civil cases, either, but as I’m not a civil attorney, I’ll leave that for someone else to explicate.)

For one thing, when defending someone accused of a crime, the “client’s side of the story” may never be told at all. It’s not a question of “here’s the prosecutor’s story” versus “here’s the accused person’s story.” Accused people aren’t required to provide some alternative to the fact-finders.

The fundamental flaw in modern law is the failure to recall — the failure to wholeheartedly endorse — a fundamental principle of our system of justice. In fact, it’s why we no longer have a system of justice. What we have is a legal game of tic-tac-toe. Sure, we pay lip service to the concept; we mumble the right words, at least most of the time. But we don’t endorse the words; we don’t allow those words to guide our actions.

But the words that linguistically represent, that aim to communicate the fundamental principle of American justice, are these:

The defendant has pleaded not guilty to the charge and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence. (Taken from a proposed set of jury instructions.)

Despite its frequent use in both legal and non-legal contexts, “presumption” is not a word with which many people are familiar. (It bothers me how often judges, attorneys, including defense attorneys, use words their clients do not understand. But this is something for another blog post (someone remind me later!).)

The word is related to the words “assumption,” “assume” and “presume.” All these words have as their root the Latin word “sumere,” meaning “to take.” To “assume” something is to adopt or accept. To “presume” is to take in advance. You can think of it either as “accepting in advance” or “taking in advance.”

In other words, when we “presume” someone “innocent,” we take, in advance, the idea that he is. Having taken this position, we give it up only after someone else — in a criminal law case, the prosecutor — proves that this is not true. We stop believing the person is innocent only if the other person proves that our belief in the person’s innocence is incorrect.

There’s a corollary to this, I think, for jurors: If you truly cannot “take,” or accept, that the accused person sitting at the table in the courtroom is innocent until after the prosecutor proves to you that this is not true, then you don’t belong on that jury. If you allow yourself to become part of that jury when you do not believe the accused person is innocent, you are behaving in an immoral fashion; you are behaving hypocritically at best and, one might say, you are even behaving in an evil manner. For by allowing yourself to be seated on the jury, you are essentially telling the judge, the attorneys, the accused person, all your fellow jurors, and the world, that you believe the accused person is innocent and you are there to permit the prosecutor to try to convince you that you are wrong.

You’re not there “to hear both sides of the story.” This is how the law student (and many others) made the fundamental mistake in understanding “how someone can defend guilty people.” There is no “client’s side of the story” to present. For that matter, at the start of the trial, there are no guilty people.

This is, however, probably not a completely satisfying answer. And I’m not going to “cheat” you out of an answer that (I hope) satisfies you. Because what a lot of people mean when they talk about “defending guilty people” is “defending someone you — the attorney in whom they have supposedly confided, who supposedly has access to even more information about guilt than the prosecutor — know really did commit the crime, even though it hasn’t been proven to anyone else in a court of law.”

Many of the people a criminal defense lawyer defends will be “guilty” in this sense, even if they are never proven guilty. (Remember, any of you who may be jurors reading this, that you don’t know which of the people me or other attorneys are defending at the moment fit into this group. Your presumptionis that anyone we’re defending who hasn’t been proven guilty is not guilty. Unless you accept this, there is no such thing as “justice.”)

A criminal defense attorney who said “I’m only going to defend people I know are not guilty,” first of all, would sometimes refuse to defend some people incorrectly. That is, it’s almost certain that sometimes the attorney’s judgment would be wrong: some innocent people do look guilty at first blush. And when an attorney is deciding whether or not to accept a new case, that’s where she is: first blush. The attorney doesn’t even usually have more than a shred of evidence one way or the other when deciding whether to take a case.

Secondly, the criminal defense attorney would soon find herself unable to feed and clothe her family. Criminal defense attorneys don’t usually make a lot of money in the first place; even less if they’re turning away half the people who come to them.

But, thirdly, and most importantly, the defense attorney who refuses to defend “guilty” people fails to understand the job of a criminal defense attorney. Because as I said above (and in The Crucible of Adversarial Testing), our system of justice — true justice — only works when someone makes the prosecutor prove, beyond any reasonable doubt, that the accused person is guilty.

That someone is the criminal defense attorney.

That is the job of the criminal defense attorney. Our job is not to say, “This person is innocent.” Our job is not, as is sometimes crassly put, “to win at all costs.” Our job is not to do anything except make a prosecutor prove that what he or she believes is true is true: that the accused person, who everyone else really believes is not guilty, is actually guilty.

And that only works when we start with a group of people (a jury) or a person (the judge) starts with the belief that the person accused of the crime is notguilty and the defense attorney works hard to poke holes in the prosecutor’s theory. If we start with fact-finders and judges of law who assume innocence unless and until guilt is proven and the defense attorney actually does his job, then we can sleep at night. We can believe that very few innocent people will be convicted.

If we start with anything different — if we start with the belief that the person “is probably guilty, or we wouldn’t be here,” or if we start with a poorly-trained, lazy, or overworked defense attorney who doesn’t understand his or her job — then we can be sure of only one thing: More innocent people will be convicted.

For too long, jurors — and judges who should know better — have startedwith a different belief. They have started with the idea that the person probably committed the crime. Or they have started with the idea that “there are two sides to the story and so far, we’ve only heard the prosecutor’s side, so we have to wait for either the accused person to admit guilt, or for a trial, to learn the truth.”

[T]he presumption of innocence is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts. The people of the United States have rejected the alternative to a presumption of innocence — a presumption of guilt — as being inquisitorial and contrary to the principles of a free society. (, Law Encyclopedia, “presumption of innocence,” last visited November 22, 2009.)

The presumption of innocence is essential. But if a defense attorney doesn’t do the job of a defense attorney — to poke holes in the prosecutor’s story, to show its weaknesses, to make the prosecutor prove the case against the accused — then the essential requirements for justice cannot be met. These are the twin towers of America’s greatness when it comes to justice.

So without hard-working and skilled defense attorneys who understand their jobs, there is no justice.

This is what I hope that student learns. This is what I hope we all remember.