The Fallacy of True Believers

Yesterday, I received an email from Steve Schmidt alerting me to a post at Missouri Criminal Defense Lawyer, a blawg by Randy England, a Jefferson City lawyer who spent 14 years as a prosecutor before turning over a new leaf for the past 3 years.  The post was about two sides of the same coin, cheating prosecutors and blind defense lawyers.

Zealots.  True believers.  Regardless of which side they associate themselves with, they do so with such fervor that they lose detachment.  As Randy points out, this is a bad thing no matter what side they are on, though for very different reasons.

The worst zealot I’ve ever had the pleasure of working with was Bill Kuntsler.  While he had his charming moments, he was more likely pedantic than anything else.  But then, he was Bill Kuntsler, and he had some right to lecture us kids who didn’t live the life he did or experience the law through the fights he had been through. 

But Bill was a scary guy.  Bill was a true believer in the cause, not that I was ever quite clear what the cause was because abject liberalism is an ever changing line.  Bill existed for the cause, not the client.  If the cause demanded that the client burn, so be it.  He took a long range view of the world, and the cause was far more important than any individual, with their petty problems.  So us stupid kids who found ourselves in his orbit learned quickly that our focus, the client, was mere canon fodder to Bill.  And he could be far more dangerous (because he was far smarter, quicker and stronger) than any prosecutor we had ever met.

His associate/partner, Ron Kuby (now of radio fame with Curtis Sliwa, who can’t hold a candle to Ron’s intelligence) was much more practical.  He understood that clients were people, and never sold out the client for the cause.  Mind you, it wouldn’t have hurt Ron to change his hair style over the 25 years I’ve known him, but tasteful grooming has nothing to do with his focus as an attorney.  He’s still the same lib, but not a slave to doctrine.

True believers usually end up having problems as a criminal defense lawyer.  When people push the “factual innocence” button, they almost always miss the boat.  We don’t defend because our client’s are innocent.  We defend because they are accused.  Our job is to test the government, not to do justice.  Many find this abhorrent.  If justice is the goal, then how can we claim the high ground while admitting that we don’t do it?

There are two sides to this coin, as Randy well notes.  One side, the prosecution, has a different purpose in the system than the other.  The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural.  They are equally responsible for keeping innocent people out of jail as putting the guilty in.  They are responsible for protecting people, but that goes beyond protecting people from crime and includes protecting people from the government. 

This is why the law demands that prosecutors and police disclose information that undermines their position.  If the system was purely adversary, such an obligation would be nuts.  Why require one side to cut its knees off?  Because the duty of the government goes far beyond putting any individual defendant in prison, and extends to providing an system that seeks a higher “truth”, both substantively and procedurally.  Due process and equal protection are the broad cornerstones of the legal system, and the government’s real calling is to assure both to everyone.  Sure, it’s naive, but that’s the theory.

The flip side is the role of criminal defense lawyer.  Whereas prosecutors have a duty to society, the defense lawyer’s duty is to one individual, and only one.  Not fair?  Of course it is.  The playing field is way out of level, with the prosecution having police, guns, access to information and unlimited finances.  The defense lawyer is supposed to level the field, because he (unlike the prosecutor) doesn’t have to concern himself with society’s needs, just his client’s.

When the prosecutor is a zealot, he wreaks havoc on the balance of the system.  If a cop arrests someone, then he MUST be guilty.  If he is absolutely, definitely, beyond any doubt guilty, then the prosecutor MUST do everything in his power to put the defendant away.  After all, in the scheme of competing prosecutorial priorities, putting the bad guy in jail and thus protecting the public from him is at the top.  Nothing else even comes close.

So what’s wrong with that?  Cops are wrong.  More than anyone wants to admit (we would like them to never be wrong, but that’s not life).  And prosecutorial zealots, when confronted with indications that the cops are wrong (or far worse, dirty), will deep six the proof so that the bad guy doesn’t get away. Usually, no one ever knows.  It’s almost impossible to know what happens in the deep, dark back office of the prosecutor.  Rarely does anyone come forward to mention it.

So the defense lawyers are better?  Not necessarily, but the impact is very different.  Most effective defense lawyers start with the assumption that their client is guilty.  Not because he necessarily is, but because it allows him to detach himself from the emotion of the case to step back and assess the case, the evidence, the jurisprudence, from a neutral perspective.  It matters far less what the defendant has to say about his case then what the prosecution has to say.  They put on their evidence, and we must determine what we can do about it. 

Sometimes defendants are innocent.  Far more often, they are guilty.  At least of something.  And sometimes they lie to their lawyers about it, and about the facts that surround it.  If we accept and adopt those lies, we end up the dumb guy in the room, operating from a position of ignorance.  This helps no one, especially our client.  Without knowing what we really have to confront, we cannot be effective. 

It’s difficult for many defendants to appreciate that their lawyer doesn’t care whether they are factually guilty or not.  Many believe that if they insist on their innocence, we will work harder or care more.  Not only is this wrong, but it’s dangerous.  The only real weapon a defense attorney has is information.  If the information is wrong, then he’s shooting blanks.   Feed your lawyer baloney and that’s what he will work with.  But at the end of the day, the client will have to live with the outcome. 

But Randy’s post takes the issue one giant step farther, with his story about defense supporters sitting on one side of the courtroom, like the bride’s friends at a wedding.  When it’s not our case, do defense lawyers invariably support the defendant?  Don’t we care about the fact that some defendants are guilty, and they may be a blight on society?  Yes, we do.

We live in this world too.  We don’t want our children molested, or sold drugs, or murdered.  Lawyers who can’t distinguish between the function of a criminal defense lawyer and the function of the system as a whole within our society are indeed blind.  While we may support a lawyer with whom we are friends (we’re only human), or a defendant with whom we side for a specific reason, we should not support crime.  We can step away from our defense lawyer mindset to appreciate that the cops and the prosecutors serve a vital role in protecting us from harm. 

When I witness wrongdoing, I want it stopped and the perp arrested.  This may sound like heresy, but I have no love of crime.  In fact, I am quite strong on law enforcement, hard as that may be to un
derstand given what I do and what I write.  My expectations of the police acting properly in the course of enforcing the law doesn’t change, but my demand that they do their job remains firm.  I want to see cops on the road.  I want to see cops investigate.  I want to see cops think hard so that they can protect us from crime and, when it happens anyway, find the criminal and bring him to justice.  But it is justice that I want him brought to, not just conviction. 

What stands in the way of this Utopian view?  True believers.

11 comments on “The Fallacy of True Believers

  1. Mark Bennett

    Great post, Scott. I’ll admit that there are some laws that I think the State should be zealously enforcing, but the problem is that so much of our money is wasted prosecuting acts that shouldn’t be crimes.

    Am I allowed to be a true believer in the job, without believing that my clients are always right or that the government is always wrong?

  2. SHG

    Am I allowed to be a true believer in the job, without believing that my clients are always right or that the government is always wrong?

    Absolutely.  That’s a very different type of true believer, and the type of true believe that we should all be.

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