Sorry, No Justice Today

The very first post at Simple Justice, dated February 13, 2008, was about “justice”.  And still it’s a subject of discussion.  It’s one of the primary concerns of the young lawyer, not because they are stupid or malevolent (or brilliant and well-intended, as the case may be), but because they have a need to believe that they are serving a higher purpose. 

It’s understandable that lawyers want to believe that there’s a higher purpose to what they do.  Who doesn’t?  And it’s certainly understandable that non-lawyers want to think of our work as falling on the side of justice, as it’s particularly hard to justify what we do if it serves an unjust purpose.  Of course, detractors of criminal defense lawyers see it exactly that way, unjustifiable.

Jeff Gamso, who has worked this side of the road for a while, posted about this following mine, and then posted a follow-up, which addresses two questions, whether there is or should be crimes that are so repugnant to a criminal defense lawyer that he wouldn’t touch them, and what constitutes that higher purpose that inexperienced lawyers need to justify themselves.

I don’t doubt for a moment that the role (and maybe it’s that I don’t view it as a “job” but as a calling) serves a higher good than just the client’s interest. I think there’s nothing nobler in the law, and little nobler outside it, than to advocate for and serve the criminally accused and the criminally convicted. Unlike Scott, I have yet to find the category of person I won’t willingly represent (the Bernie Madoff’s of the world might be it, but they’ve never come knocking). When I say that I represent _______, I’m proud to be able to say it. And to mean it.

That IS the higher purpose. To stand beside the reviled. To say here I am. You only get to him through me. I am the bulwark against the system and against the power of the government. If there’s justice at the end, it’s incidental, and I’m not working for it. (And, by the way, opposing injustice – whatever that might be – isn’t the same as pursuing justice – whatever that might be.)

Jeff is correct on both issues.  My decision not to represent people who sexually abuse children isn’t a point of pride on my part, but a failing.  I am so repulsed that I do not believe I can fulfil my duty, and I believe that fulfulling me duty is paramount.  In other words, my refusal to represent is a fault on my part.  That I refuse is the best I can do to avoid taking a case and then failing to fulfill my duty. 

What disturbs me still is that the message isn’t getting across, and instead is twisted, then twisted again, by the stubborn and entitled justice-needy lawyer. Jeff has been clear as a bell. So have I.  So have many other experienced lawyers. This has proven of no consequence to the justice-needy lawyer, who, despite his dearth of experience, insists that this is consistent with his personal vision of morality and justice, which means that it really is about justice all along.

In a comment to Jeff’s post, John Kindley, a very bright young lawyer despite his rather extreme political views, murders a whole bunch of words in the effort to show that he’s not a bad fit as a criminal defense lawyer.  Kindley has become something of a poster boy for the Slackoisie, though not because he’s afraid of hard work.  It’s about his narcissism, as demonstrated by the fact that five out of 6 paragraphs begin with the word “I”, and the sixth prefaces “I’m” with “In short,” a phrase that has no place in his writing.  It’s about his entitlement, as shown by his noting that he’s the least experienced lawyer in the discussion, yet insists that his opinion is entitled to predominance.  But as a poster boy, Kindley reflects the future of criminal defense, and thus is best not ignored as mere foolish ramblings.

In short, I’m very cognizant of the injustice perpetrated at every turn by the State against defendants. Therefore, while part of the intent of the “formula” is to remind prosecutors that they should be seeking justice and not simply as many convictions and the harshest punishments they can get, in my experience they only occasionally really do. In the cases that have meant the most to me, I have felt myself squarely on the side of justice and the State squarely on the side of injustice. I don’t want to implicitly give the State credit for “seeking justice” it doesn’t deserve.
While non-lawyers can have a grand time playing the game of pigeonholing criminal cases as good and evil, that’s because they are just kibitzing.  Their “opinions” are of no consequence, as they are neither advocate nor judge.  But when a lawyer charged with a representing an individual accused of a crime plays this game, it’s dangerous.  The need to find some way to rationalize his representation in terms of his personal vision of justice puts his client at risk.  We don’t have the right to risk our clients on the altar of our personal beliefs.

On the one hand, it may be an overt realization that a particular client is unworthy of his particular brand of justice.  On the other hand, it may be that the rationalization covertly causes the lawyer to envision a strategy that comports with his personal brand of justice rather than the client’s best interests.  Even these words, “client’s best interests,” become too fuzzy, as he may well rationalize that whatever he, in his judgmental heart, believes to be ‘right” can be mentally manipulated to mean “client’s best interests” if he’s not too rigorous in his thinking. 

And that’s the heart of the problem.  The mind is a fascinating organ, allowing us to play all sorts of nasty, ugly games with ourselves to permit us to believe what we want to believe, that we are serving some higher calling while still doing our job.  Criminal defense lawyers hold all sorts of political and philosophical views, spanning the same spectrum as anyone else.  But when we enter the well, we’re just criminal defense lawyers.  We leave our personal world outside the courtroom, and inside we defend our clients, whether saint or sinner.  

Of course we understand that we, are part of an overarching system, have a justification for our existence.  We keep the government honest as best we can.  But we defend some brutal, evil people, whose constitutional rights were honored, who were treated properly by police, who were given every benefit of the doubt, who well deserve punishment, and we get them off if we can.  Without blinking or a second thought. 

My bet is that Kindley will murder another thousand words to explain why this is still “congenial [his word] to [his] broader outlook on life.” It’s still all about him.  It was my initial hope that his self-absorption could be broken, that he would come to realize that criminal defense was not dependent on John Kinsley’s “outlook on life.”  Despite my efforts, I’ve been unsuccessful, and I fear that he is simply the rather long-winded voice of a generation that believes that duty is conditioned on their personal approval of what they do.  

This is not really about Kindley, in other words, but about criminal defense lawyers who undertake the representation of human beings with the self-delusion that it’s conditional: All is well as long as they can rationalize why they are serving “justice”. 

My response to Kindley was “We defend. Get it or get out.”  And I mean it.  Any lawyer who needs to stroke his conscience, to twist his representation of a defendant to meet some personal sense of justice, to come to terms with his personal moral dilemma, should find another practice area, if not another profession altogether.  You are not cut out to be a criminal defense lawyer.

Amongst real criminal defense lawyers, this is never really a subject of discussion.  Anyone who feels the need to argue the point further reveals him or herself as being unfit to handle the responsibility of defending a human being charged with a crime.  There is no room for rationalizations of justice in the well.  We defend.  Get it or get out.

20 thoughts on “Sorry, No Justice Today

  1. Hull

    2007, maybe? On February 13, 2008, you were already a General in the “Will-Gen-Y-work-for-the-$-or-do-they-just-get-to-observe?” Movement.

  2. Thomas C Gallagher

    This is an important topic, in many ways. The common question from non-lawyers to criminal defense lawyers: “How do you live with yourself, defending people guilty of terrible crimes?” We criminal lawyers must resist weariness at the repetition of that query – for it is asked with sincere wonder. The answer, of course, has to do with ethics – though not at a level the questioner may be familiar with.

    As lawyers, we have a higher ethical duty – a fiduciary duty – to our clients based upon our special knowledge and role in the legal system. Not everyone has that. But the administration of the laws is improved if every litigant does have that, or an advocate who does. Beyond expertise, there is value in having someone else advocate upon your behalf. This is why lawyers use other lawyers in their personal court cases (where a lawyer is a party), even though they possess legal expertise.

    The three classic professions, medicine, law and the clergy, all have at least one thing in common – the duty to help those in need. Yes, we need to earn a living. Assuming our client can pay us for our work – it is our ethical duty to help our clients in legal need. For criminal lawyers, that means helping people suspected or accused of crimes – sometimes horrific crimes. We share this higher ethic with medical professionals and the clergy. Should an Army doc in a battlefield hospital treat an injured enemy soldier? Should a priest or nun provide spiritual comfort to a hated murderer?

    We minister to the afflicted, those who need us. We are a human bridge to redemption, understanding – even the correction of false accusation and false witnesses. We are proud of our role.

    The answer can be viewed from different perspectives. Above, is an individual perspective of one human being (the criminal lawyer) to another human being (the client). Another perspective could be that of the system, or a systemic perspective.

    The legal system and the government depend upon a public perception of legitimacy, including liberty, democracy, populism, as well as justice. Lawyers talk about the ideal of “access to justice,” which is another aspect of the foundation of social legitimacy. Without lawyers, these would not be possible – not really. Lawyers help reconcile The People with The State, in a system of laws, more or less. The government and the legal system depends upon lawyers for legitimacy and even survival (as a democratic republic).

    Would Caesar kill the messenger bearing unwelcome news about the war? A wise Caesar would not. Would a person blame a lawyer for advocating an unpopular client or cause? A wise person would not.

    A criminal defense lawyer has a sacred duty to advocate for the accused, based upon the law, the evidence, and the Truth. By serving well in our role, we are the foundation of Liberty, and sometimes Justice, for all. Humans are imperfect as are our systems. We must work hard, with compassion, to make it better.

  3. JR

    Since Kindley graduated high school in 1987 (according to his website), he would be somewhere in the neighborhood of 40 years of age. He has practiced law for 10 years. I am not sure I would characterize him as either a young man or a young lawyer. But, as a 27-year veteran in the legal field, what is young to you is bound to be different than what is young to me, a true youngin’.

  4. John R.

    Personally, I’m not sure I function in such a detached way, but I’ve never been unable to find something, at least one thing I could argue on behalf of a client in good conscience. And I’ve never met a human being, including criminal clients, who did not have some redeeming qualities.

    I don’t think that’s rationalizing, but then again, how can I tell?

    I would advise a defendant of any legal defenses he might have. I would try to sort out the effective ones from the ineffective ones. I mean, sometimes a defense is there, but you’d better not argue it because the jury won’t buy it and they’ll punish you for making the argument at all. Such as, generally speaking you don’t argue alternative theories to a jury. You have to pick one or the other if you want a decent shot at an acquittal.

    Or at least that’s the way it is with me. Other attorneys may be better at that than I am.

    If you wind up in a situation where the client really wants a particular defense pursued but you think it’s a bad idea you recommend he get another lawyer.

    I mean, I generally agree that you should not rule out arguing anything based solely upon your personal moral preferences or sense of justice. OTOH, if your personal moral preferences and sense of justice are in line with what you think the jury’s are, there’s really no practical conflict, because you have to worry about what the jury thinks anyway.

    I’m probably not making any sense. Criminal defense is very morally complicated and nuanced.

  5. SHG

    I believe that he’s only practiced law for about 3 years, even though he’s been admitted longer.  So that qualifies him as a new lawyer, at least to me.

  6. John Kindley

    Who is more narcissistic? Me for using the word “I” in a comment defending myself from the charge that I have no business being a criminal defense lawyer, based largely on a disagreement over emphasis and language rather than underlying philosophy? Or you, for imagining that, because of your prominence as a ringleader of the criminal defense blawgosphere, you have the authority to determine the orthodox creed for criminal defense lawyers and therefore who should and shouldn’t be a criminal defense lawyer?

    My wife has told me before that I tend to be wordy in my comments on blog posts, so I’ll just plead guilty as charged to that one.

    As you know from Gideon’s tweet (I don’t participate on Twitter, but it’s been interesting following what’s been said about me there today by you and others), I’ve posted on my blog today a thoughtful article by an experienced criminal defense attorney when he was chair of his state bar association’s criminal law section, which suggests that our differences over language and emphasis aren’t simply attributable to my experience in the field relative to yours.

    Finally, we’ve exchanged harsh words in the past and have gotten beyond it, and I trust this exchange will be no different.

  7. SHG

    First, let me commend you on the maturity you show in your last paragraph.  In fact, my hope is that you, and others who might see things like you, will come to “get it” and be the next generation of criminal defense lawyers.  We need you.  One day, you will find yourself defending someone who has no redeeming value and for whom justice, by anyone’s definition, is a good long prison sentence.  And you will still defend him.  That’s what we do.

    As for my being the ringleader of anything, don’t believe it.  And if I was, it would be like leading feral cats.  No one in the blawgosphere hesitates to disagree with me when the think I’m wrong.  As for the article you mention, it’s both pretty awful, much like the type of tripe we tell people at cocktail parties, and doesn’t quite say what you think it says.  That’s not your fault, as it’s just an awful article, confusing and relatively pointless.

    So I’ve said you don’t have what it takes to be a criminal defense lawyer.  Prove me wrong.  Not be pressing the point that you’re entitled to do the job because it is congenial with your personal sense of justice, but by showing that you get the message that criminal defense lawyers defend people accused of crimes, whether it’s comports with anyone’s notion of justice or not.

  8. Keith G. in P.V.

    Do you accept posts from the non-lawyer public?

    I’m one of those to whom you refer when you claim “[w]hile non-lawyers can have a grand time playing the game of pigeonholing criminal cases as good and evil, that’s because they are just kibitzing. Their “opinions” are of no consequence, as they are neither advocate nor judge.”

    I beg to differ. Our “opinions” put politicians in office. Our “opinions” make laws like the disparity between crack and cocaine sentences possible. Our “opinions” make possible the numerous, worthless laws named after white females under the age of 25. Our “opinions” permit things like the prosecutions in the Nicarico case.

    If you wish to call me a part of a naive or ignorant or untrained, unskilled and unknowing non-attorney public, that’s generally true. But WE, wise or ignorant, informed or unaware, sit in the jury box with OUR peers and determine your client’s fate. We elect prosecutors who wield the power and resources of the state. We can make or break the fate of a sheriff or police chief. Right or wrong, ignore us at your and your clients’ peril.

  9. Windypundit

    What he said. The opinions of us non-lawyers are of consequence because the people who make the laws listen to us. Well, not to me, or anybody who agrees with me, come to think of it, but to some of us, surely, especially if you include politicians and the TV talking heads. Some of them are lawyers too, I guess, but they’re not actually lawyering anymore, e.g. Nancy Grace, so I think they count as non-lawyers of consequence. Not that I want to claim them for my side exactly…Er, the point is that we outnumber you so watch out. Yeah, that’s the point. This is the kind of comment you were talking about in the other post, isn’t it? Really just wanted to say hi.

  10. John Kindley

    What I took from his comment is that it would be folly to stand in front of a jury and to say the prosecutor’s job is to do justice, while my job is to defend my client without regard to justice. In my last jury trial (and I’m not pretending there have been many at all) I made sure the jury understood the asymmetry that properly exists between the prosecution and the defense, but I also threw in some amazingly eloquent rhetoric about justice. In related news, one often comes across as more credible if one actually believes what one is saying.

  11. John Kindley

    I’ve only been regularly practicing criminal defense for about 3 years, if that, depending on how one defines “regularly.” Right out of law school I found myself on the cutting edge of some litigation I thought warranted the single-minded focus I gave it, and which somewhat limited what else I was able to do, culminating in a relatively high-profile trial a couple years out of law school, followed by an appeal. The result of that trial and appeal took the wind out of my sails quite a bit, and I kind of just dabbled in the law for a few years after that and drafted a lot of wills and trust.

  12. Keith G. in P.V.

    Yeah, what Windy said. They don’t listen to me, either. I never said the larger public was very bright.

  13. PamelaJ

    I did find a category of person I cannot represent. I also consider it a flaw.

    In my years as a criminal defense attorney, I’ve represented several –perhaps many–people charged with rape. Even though I am female, I had never experienced any conflict with such representation.

    However, two years ago I represented a man charged with aggravated rape The victim’s uterus was destroyed and she became a permanent paraplegic. She testified from her wheelchair.

    I put every element of the government’s case on trial. I investigated the h — out of the case and knew more than the cops or the prosecutor about the scene. The prosecutor’s closing argument was dreadful. He mumbled, he muttered, he was weak on every level: he thought it was given he would convict.

    During my closing, I hit all my points. I felt strong. As I watched the jury. I knew they were going to acquit. For one moment, in my mind’s eye, I saw the young victim, sobbing in her wheelchair during her testimony. She had wanted to have babies. Suddenly and to my total amazement, large red hives developed all over my face and chest. This happened in the last couple of minutes of my closing.

    When the jury came back with the acquittal thirty minutes later, an associate had to take the verdict. I was covered from head to toe in red weals and the judge had called an ambulance.

    My body could not deny my conflict. I have never had hives in my life — not before or since that trial. I no longer represent persons charged with violent rape (or persons who torture children.) Not in the client’s best interests. I wish I could change, but it is what it is.

    SHG: what you said, all the way.

  14. Andrew

    Your post spawned a similar post by Rick Horowitz on his site. As I expressed to him, I want to thank you for taking the time to write that. Since I made the decision to pursue law (specifically in criminal defense) I’ve had countless friends and family ask me the “how can you defend guilty people” question. I’ve wrestled with how to answer it to their satisfaction.

    Your post, and Rick’s, have made it easy. In the future I’ll take the (perhaps intellectually lazy) approach of directing questioners to this post. Thank you for expressing the idea so well.

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