Some folks complained to me about my having nothing to say about the Hillary Clinton as defense lawyer fiasco propagated by the Beacon Free Press, and then seized upon by such thoughtful and credible websites as Jezebel.  Quit yer bitching.

First, it’s Hillary.  This is a law blog, not a political blog.  No political philosophy prevails here, much to the consternation of those who believe theirs should, and the concerns of criminal defense lawyers are often at odds with partisan politics of all flavors.

Second, Hillary had a big mouth.  Regardless of whether you see her assertion that her client, accused of raping a 12-year-old, was guilty as being fact or opinion, she had no business, absolutely none, discussing the question of her client’s guilt under any circumstances.  It’s hard to imagine that confidences weren’t breached here, though it would be impossible as an outsider to know exactly where, but the point remains that if she had kept her mouth shut, there would be no issue. She talked. She shouldn’t. She is not the poster girl for defense discretion.

But what of the attacks of Hillary, the protector of women and children, having not only defended a man accused of a heinous crime, but going after the tween in the course of her defense?  It was enough to make Fishtown Lawyer Leo Mulvihill irate.

Here’s are two highlights :

On the other hand, how massively fucked is it that our legal system expects and encourages attorneys to treat rape victims like this? And that even Hillary Clinton didn’t have the balls to set her career goals aside for a moment and stand up to what she must have known was bullshit, even in the midst of a time in her career she claims was devoted to serving children and families?

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Hillary Clinton didn’t ‘laugh at a rape victim’ as the coverage errantly insists, but she definitely was the sort of lawyer who would attack the credibility of a rape victim in pursuit of legal victory.

You’re right, Erin. It couldn’t possibly be that Hillary was doing her job as a criminal defense lawyer and had an ethical obligation to defend her client however she could—it was that she had “career goals.” She should have “had the balls” to roll over and sell her client up the river, in derogation of her ethical duties to her client, because she’s the sort of lawyer who DARES to attack the credibility of a complaining witness.

But Erin Gloria Ryan, the Jezebel writer, recognizes that criminal defense lawyers have a job to do.  She just thinks there are lines that shouldn’t be crossed.

Providing legal defense to clients is what defense attorneys do. That is their job. But just because Clinton was being particularly aggressive in doing her job doesn’t mean that her job didn’t end up leaving a woman traumatized for decades. And it doesn’t mean that the par-for-the-course legal defense for rapists often involves throwing victims’ character under the bus, personal consequences be damned. Even self-proclaimed champion for women and girls Hillary Rodham couldn’t separate herself from the bullshit.

Fight hard.  Just don’t let the fight to defend a rapist traumatize a victim.  Is that too much to ask?  Where is her humanity?  Where are her values?  What about the consequences of being “particularly aggressive”?  If anyone should understand, isn’t it Hillary?

Allegations are raised that in supporting papers to a motion to have the complaining witness psychologically examined, Clinton lied.  The basis is a second interview with the complainant at the Daily Beast, who denied that she was “emotionally unstable.” Hillary alleged, “upon information,” that she may be, and had made false allegations in the past. The complaining witness denied it. Pretty common stuff, and beyond being put to the test nearly 40 years later.

It’s not that this story didn’t offer opportunity to make the point, yet again, about what criminal defense lawyers do, or why they do it and why that’s a good thing for society.  It’s not that this story didn’t provide good reason to highlight how even those partisans who appreciate our function under other circumstances, say murderers or terrorists, can’t mange to accept the same rationale when their gender politics are involved.

Some have tried to twist this, just enough, to argue it reflects not just the legitimate purposes for criminal defense to exist, but a character flaw in knowing the defendant is guilty, yet still choosing to traumatize a child rape victim.  Yes, they know that defense lawyers are duty bound to zealously represent their clients, but it’s only “within the bounds of the law.”  Why not within the bounds of their political sensibilities as well?  Would it have killed Hillary to put the victim ahead of her client?

This, in various permutations, reflects the grievous misapprehension of some criminal defense lawyers, who either believe they’re entitled to substitute their personal view of “justice” for their duty to their client, or their entitlement to temper their duty when it conflicts with their personal sacred cow issues.  Hillary Clinton proved to be a better criminal defense lawyer than these lawyers, which ought to cause them no small degree of shame.

So why, then, given all the issues raised, given all the lessons to be had, did I not rush to defend Hillary Clinton from the onslaught of misguided, stupid, wrongful criticism?

Because she talked too much.  She should have kept her yap shut, and never uttered a word about her client being guilty or about the details of the defense.  But she talked, and by doing so, did something no criminal defense lawyer should do. That’s why.