A constant lament is that the judiciary has a decided lack of criminal defense lawyers, which tends to limit the breadth of experience of judges to prosecutors and Biglaw types. This isn’t to say that former criminal defense lawyers necessarily make good judges; they’re no better or worse than anyone else, and many inexplicably overcompensate for their past by being particularly harsh.
Yet, the question of why criminal defense lawyers can’t seem to get on the bench is easy. They have histories that are easily used against them. We represent people accused of crimes. We represent people who are guilty of committing crimes. Oftentimes, really nasty crimes. That’s the job, and it’s our duty to do so zealously.
Mike George is running for the Pennsylvania Supreme Court. So naturally, Philly.com has outed him for having used a “gay panic” defense.
“HIKER MURDER SUSPECT ARRESTED;’MOUNTAIN MAN’ IS FOUND ON FARM,” read a May 25, 1988, Daily News headline.
“A TIME OF TERROR WHEN SHOTS RANG OUT, HIKER TESTIFIES,” the Inquirer wrote on Jun 24, 1988.
But before Carr was found guilty, George delved deep into Brenner’s sex life with Wight, hoping to get some residents – and potential jurors – in conservative Adams County to speculate about whether the couple’s sexual orientation might have provoked Carr into opening fire.
“That’s why we had to get all the steamy facts of what had happened up on South Mountain out before the public. Sort of let what happened simmer in the public’s imagination,” George said in a book interview more than a decade later. “In a way, we wanted to get the local folks talking more about the lesbianism than the murder.”
There are two separate problems raised by this Philly.com post. The first is “presentism,” the view of something that happened at an earlier time through the prism of a present day lens. George tried the Carr case in the 1980s, and used the means that were effective at the time under prevailing notions of homosexuality. He played the gay card, because it was there to be played and, well, people in the 1980s were still knee-deep in prejudice against gays. Not neck-deep, but knee-deep.
It’s outrageous now? So what? It didn’t happen now. It happened then.
That it will offend people today that Mike George used the prevailing attitude toward homosexuality is a point that many will struggle with, not because it reflects anything about George, but because people are too irrational to grasp that their feelings of right and wrong today aren’t the measure of what happened decades ago. Yes, it’s hard to let go of the feelz, but it’s what reason demands. Reason is a harsh mistress.
The second problem is that Mike George represented the defendant. He didn’t represent truth and justice, despite the fact that many today can’t separate the duty of a criminal defense lawyer from their social justice agenda.
It’s not just non-lawyer SJWs who indulge in their “justice” fantasies, but a coterie of lawyers who similarly believe they serve some higher order of “justice” based upon their feelings. They’re a disgrace. If they are unwilling to put aside their personal feelings and put their duty to their client first, they should not be lawyers. Of course, they think otherwise, because they’re right and justice is wonderful. Just pray you never get one as your lawyer, who will sell you out because they can’t get past their feelz.
This issue has been plumbed many times, and Mark Bennett has provided a clear and straightforward explanation of the duty.
Three questions a criminal-defense lawyer should ask herself when considering action in aid of the defense in a criminal case:
- Is the action effective?;
- Is the action legal?; and
- Is the action ethical?
The first inquiry is not, “will the action succeed.” but “do the chances that it will make things better outweigh the chances that it will make things worse?” Because this is a very complex inquiry, requiring broad and deep knowledge (the law, the facts, human nature, culture, strategy, tactics) as well as wisdom and the ability to let go of ego, it is where good criminal-defense lawyers earn their keep, and it is fraught with danger for others.
Using the gay panic defense may well offend sensibilities today, and will almost certainly prove far less effective than it did in the 1980s. That societal norms and prejudice toward homosexuality have changed since then would, in all likelihood, render its use ineffective, and it would thus fail the first prong of Bennett’s test.
But impugning Mike George’s defense today has nothing to do with its effectiveness decades ago. It was not illegal to raise it, and it did not violate the Code of Professional Responsibility, no matter how offensive one may find it now.
Most importantly, the use of the gay panic defense at the time reflected Mike George honoring his obligation to his client, to zealously defend against the charges. Had George failed or refused to use an available, lawful and ethical defense that held the potential to serve his client, then his handling of the case would be properly called into question. That the defense is distasteful today, however, is utter nonsense.
This isn’t to argue that Mike George should be elected to the Pennsylvania Supreme Court. I have no clue whether he would make a good or bad judge, whether he is or isn’t worthy of election. But this is to argue that what he did in the Carr defense has no place whatsoever in tarring him based on some imputed prejudice against gays. That’s absurd and irrational.
That Philly.com has raised this false flag, tried to smear him for the wrong reasons, reflects how people are made stupider by such illogical connections and why it’s so difficult to get the sort of diversity in the judiciary that is often missed. Hate the gay panic defense all you want, but don’t blame Mike George for doing what he was obligated to do on behalf of his client. That’s what good criminal defense lawyers do, and anyone who suggests otherwise is just plain wrong.
H/T Walter Olson
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“Reason is a harsh mistress.”
This is beautiful. Mind if I steal it? I’ll give due credit, of course. 🙂
Sure. I stole it from Heinlein.
I thought that was The Moon. 🙂
It’s a crime to riff off someone?
Sorry for the double comment here. Something jumped out at me before I was able to read the entire post, but really the whole thing is solid gold.
I detest that people look down on criminal defense attorneys who defend those accused of terrible crimes. A defense is critical even when the crimes they are accused of having committed are beyond the pale and when we know they were the one who did what is being called criminal.
I appreciate the ethical commitment necessary to defend such a person, and hope that I have someone in my corner if I’m ever accused of something. People never seem to want to ask the questions of, “What if this person really didn’t do it?” or, “They did this thing, but was it really a criminal act?”
” ….and many inexplicably overcompensate for their past by being particularly harsh.”
With press like this who would think it?
You get a begrudgingly generic bathroom hall pass for “inexplicable” but I have a theory about “many” of the former CDLs who covet the robe.
P.S. It’s a particularly depressing theory.
if any of the people crowing in Philadelphia were given option A) die locked in a cage or B) have their lawyer say something offensive that will be offensive in 20 years, I can’t imagine much of a line for option A. But I’m sure none of them would ever commit a crime or be accused – all they’d have to do is point to their impeccable social justice credentials and the cops & prosecutor would know they’re dealing with A Good Guy.
Twitted earlier today with the author, who just could not grasp that a defense lawyer doing his job did not mean he “supported” the notion of gay panic. It’s the same misguided thought that we support crime because we defend criminals. You would hope journalists would be a bit less dense, but not necessarily.
Hmmm, I wonder if this counts as ‘slut shaming’? They’d want a lawyer to get THEM off any way possible (pun not intended, but now that I see it, terribly apt), but they’ll judge someone else’s lawyer for doing it.