Tuesday Talk*: Can You Believe And Still Defend?

A young, male public defender got hold of me the other day to ask if he was crazy. It wasn’t a personal question, but raised the views of his colleagues who both fancied themselves fierce defenders of the accused while simultaneously being absolute in their support of #BelieveTheWoman.

I began by pointing out the obvious, that it would seem impossible for someone dedicated to social justice ideology to do the nasty work of defending people accused of terrible crimes, whether a man accused of raping a woman, or beating his spouse, or a white man accused of a “hate crime” against a black man, or worse still, woman.

Can they cross the accuser hard enough to make them cry, to destroy their credibility, to traumatize them if it serves their client’s interest? If they can’t, or won’t, then they aren’t the defender they claim to be.

But he responded that he got all that (which is why he raised the question in the first place), but couldn’t seem to get the idea across. They didn’t reply with the usual childish excuses, desperately differentiating their clients, where they claimed to be tough lawyers, from the exact same scenario where they were empathetic human beings absolutely committed to seeing the guy who looked exactly like their client burn in hell.

The trick was that they were goading him to come out and say the obvious, to call them liars, frauds, hypocrites. If they say they can do both, even if it makes no sense whatsoever and flies in the face of reality, they do both. Want to fight them, white boy?

For the most part, arguments like this don’t really mean anything. It’s just random people on social media, who neither shoulder the responsibility for other people’s lives nor wield any power beyond signing a change.org petition and calling Darth Cheeto mean names. They get to enjoy their catharsis, signal their virtue and then go to work dishing out ice cream cones with sprinkles.

But lawyers? Public defenders? They hold real people’s lives in their hands. And some of those real people are bad dudes. Some are guilty. Some aren’t the sort you would invite home for dinner. And we defend them too. Or we’re supposed to.

Can someone whose belief system is internally conflicted be trusted to provide a zealous defense for a really awful defendant when it requires them to rip a rape victim to shreds on the stand, or denigrate a black person who was beaten for no better reason than their skin color? Can they compartmentalize their job, the defense of the bad dudes, from their ideology, believing the victim or serving the marginalized?

If someone is going to be destroyed in the course of a criminal prosecution, will they have the will to make sure it’s not their defendant, no matter how awful he may be? Or is that no longer the job of a criminal defense lawyer, a public defender, as far as the woke are concerned?

*Tuesday Talk rules apply.

36 thoughts on “Tuesday Talk*: Can You Believe And Still Defend?

  1. Erik H

    I believe my clients.

    When they are victimized I believe them, and I will argue whatever helps their case–including arguments that false accusations are rare, consent is specific, and that the “presumption of innocence” only should apply at criminal trials.

    When they are accused by someone I believe them, and I will argue whatever helps their case–including arguments that false accusations are common and expected, consent is flexible, and we should assume innocence for everyone even outside the courtroom.

    Assuming social justice still aligns generally with diligent representation (does it?) this works well enough for me.

  2. PseudonymousKid

    Internal conflicts do not prevent zealous advocacy. So what if you think your client is a scumbag? You have a job to do, and part of that job is not seeming like you think your client is a scumbag. Swallow whatever pill you have to, toughen up, and get to work. Nothing else matters. These sorts of conflicts won’t be a problem until a public defender moves to withdraw and throws a client under the bus. I don’t see that happening, or else there will be fewer public defenders very soon.

    You crim defense guys have it easy as far as ends go. “I don’t want to go to prison.” It’s just so clean. Try working with a client who wants anywhere between “what is right” and the world. Sigh.

    1. SHG Post author

      What makes you say PDs aren’t throwing clients under the bus all the time? You wouldn’t have a clue one way or the other. Have you considered that maybe, just maybe, you have nothing to contribute to this discussion?

      1. PseudonymousKid

        “Can you believe and still defend?” Yes. “PK, you’re a moron and never contribute.” Fine. You’re grumpy.

        I don’t know if PDs are performing their ethical duty to a client, but I know that internal conflicts sometimes come up in practice that do not otherwise interfere with a representation. Or maybe they do, who am I to say anything at all? Thanks for the newest existential crisis.

        1. SHG Post author

          Not being a PD or hanging around in the lower state courts, I rely on some of the older PDs to keep me abreast of what’s happening. What I’m told is that this is a disaster, that they talk tough but can’t bring themselves to defend people accused of sex crimes or domestic abuse, as they find them repugnant and find the idea of helping them to get away with it a violation of their notion of “justice.” So they play whatever mind games they have to play to tell themselves they’re doing their job while selling out these defendants.

          Do you know about this? No. Have you experienced this while defending the accused in criminal court? No. Can you opine about this? Sure, because it’s Tuesday Talk. Any of this getting through?

  3. Richard Kopf

    SHG,

    From my perch, the great CDLs are those who are skeptics about all things including #BelieveTheWoman, their own clients and the virginity of Mary.

    All the best.

    RGK

    1. SHG Post author

      Great may be too much to ask for. Can a CDL be merely adequate while maintaining a belief system in conflict with her duty to zealously defend?

      1. Patrick Maupin

        We all have cognitive dissonances, and “this person should never be let out into society” and “I need to do my absolute best to make sure the state proves its case” could be the start of a good one. The traditions of the system are designed to alleviate this dissonance for all concerned — if the defense attorney succeeds in freeing someone who should never have been freed, then (assuming the attorney played by the rules) it really, truly isn’t his fault — someone else fucked up big-time. The public doesn’t understand this, which is one reason why defense attorneys are seldom elected or appointed to higher office, but the attorney can sleep soundly, secure in the knowledge that his critics are clueless.

        In this model, the defense attorney forces the judge and prosecutor to do their jobs, but (with rare exceptions) there is no one around to force the defense attorney to do his job — to make sure that he chooses the traditional method to resolve the traditional cognitive dissonances.

        So, even if you subscribe to the old saw about “how can you tell when a lawyer is lying?” you still really need to #BelieveTheAttorney whenever you hear a CDL say to #BelieveTheVictim — he’s telling you right then and there with as much sincerity as he can muster that he doesn’t take his job seriously.

        1. SHG Post author

          In the course of representation, and especially during trial, a CDL makes a million choices, weighs a million factors, and does it in a split second, mostly by gut and experience. It’s not just the big question, win or lose, but the million tiny questions where the focus needs to be exclusively on the defense of your client, unconflicted from any concern whatsoever about anyone else. Even within the bounds of the law, we make some very hard calls.

          Forgive the “violent” language, but can you kill without a second thought?

          1. Patrick Maupin

            You make a good point, that the effective defense attorney needs to truly have consciously and unconsciously resolved any cognitive dissonances in favor of doing all he can for his client well in advance of trial.

            Since it’s Tuesday talk, I will mention that, yeah, I think I could kill without a second thought or even a first thought. A guy blindsided me with a roundhouse punch once when I was 19, and, to this day, I still cannot remember anything that happened between that, and me straddling him on the ground, pounding the shit out of his face, left-right-left-right. I was on my bicycle when he hit me, and when I became conscious of my actions, we were probably 20 feet from my bike.

            That scared me shitless for years. There’s apparently a little demon inside of me, ready to take charge when things get really bad, but he’s never shown himself again. I’m probably very fortunate there weren’t any weapons at hand.

      2. Richard Kopf

        SHG,

        I was never a CDL but once in a while, I played one in a general practice. I certainly wasn’t great. So take the following with a grain of salt.

        Once I got a guy off who was facing the “bitch” for a series of vicious rapes where the women were blindfolded during burglaries at night. He was surely guilty. The State fucked up a search warrant application. I hated that guy. Truly hated him. I hate sociopaths. Truly hate them.

        Can a CDL be merely adequate while maintaining a belief system in conflict with her duty to zealously defend? I would say, “yes” but it screws with your mind.

        All the best.

        RGK

  4. Stephen Burch

    An attorney’s duties don’t end at the courthouse steps or when he leaves the office for the day. If you spend your “free” time advocating for changes, whether legislative or just in the public’s perception, that harm your clients, no amount zealous advocacy in the court room will undo that.

    1. SHG Post author

      This goes to one of my ongoing themes, that the woke are vilifying concepts like due process when it suits them while expecting it to be there for them when it doesn’t. Can’t have it both ways, but principled consistency isn’t one of their strengths.

    2. Erik H

      How the heck are you going to know who “your clients” are until they hire you? I suppose if you’re a full time specialist who never plans to change, maybe you can do it, but most folks can’t.

      Most of us take the client before us; advocate for them; and then move on to the next client. All of them get full support. If two successive clients have opposing perspectives or require opposing legal arguments… well [shrug] isn’t that part of the job?

      It seems like the argument here is mostly “if you don’t toe this mental thought line, you will be unable do a good job,” which reeks of hubris and is also, not incidentally, wrong.

      1. SHG Post author

        Erik, what part of this being about criminal defense lawyers, which you are not, eluded you and made you think this was all about you? Please stay out of shit about which you know absolutely nothing. Thank you.

      2. Miles

        The argument here is that if you “believe” an ideology that is fundamentally and directly contradictory to your duty, then it impairs you ability to perform that duty. Now that may still “reek of hubris” to you, but to me it smells like a zealous defense.

  5. Paul

    Them: everyone’s biases and privileges effect their actions all of the time. Also them: my ideology and biases totally don’t effect me doing my job. Ok pal.

    1. Patrick Maupin

      If you’re accused of rape, who do you want defending you? Someone whose first thought is that your accuser should not be “re-traumatized” on the witness stand, or someone whose first thought is that the state needs to prove its case?

  6. Mark

    I think a person’s peer group in whatever belief system they prescribe to plays an important role. Would they be excommunicated for their sins? Seeing what social justice does to it’s own that step out of line and the inherent need for self validation, I would say no. Other belief groups, depends…

  7. Nemo

    Some of the kids out there have become disturbingly adept at Newspeak and doublethink, and this “believe the victim” thing falls right into that category, because it has injustice baked into it. When the accuser is also the perpetrator, it requires one to believe the perpetrator over the victim.

    It baffles me that there are CDLs who fully support a philosophy like that and claim to be adequate when defending someone accused of this sort of crime category. Not to mention the digital lynch mobs that are ready to pounce on any heretics, should they violate the doctrine.

    Regards,

    Nemo

    1. SHG Post author

      I saw a twit today that kinda blew me away.

      I can spray near instant liquid rage out of my eyes thinking about how rape culture and sexual assault are so pervasive/epitomize experiential-patriarchy, but, am also pissed about harmful sex registries.

      Even as a personal survivor it is about power & systems.

      I read it once, twice, three times. And still it made absolutely no sense to me. I don’t doubt her sincerity, but it’s unfathomable gibberish.

      1. DaveL

        Well, if you let off on the pressure forcing liquid rage out of your eyes, other things might get in through those eyes. Distressing things, like doubt, or even humility. It’s physics.

      2. Ben

        “I’m experiencing cognitive dissonance but I don’t know what it is, I only know I don’t like it, so something something Marxism”

        In other words, what DaveL said.

  8. Jake

    I hate marketers. Genuinely. Their tactics drive me berserk.

    I am a marketer. A damn good one, too, I might add.

  9. CLS

    You can believe and defend. You can not believe and still defend. You can think the person’s a delusional sack of shit who doesn’t deserve a single second longer of his freedom and still defend them. Why can you do this? Because it’s the job you signed up for, and if you can’t handle that, get the fuck out of the way and let those who understand the gig do the heavy lifting.

    There will always be a certain moral ambiguity, I think, to criminal defense people who don’t practice it and who don’t get in the system will never understand. For those outside the system, every judge is fair and impartial until someone they know gets “fucked” on a ruling. Every defendant is evil until it’s a loved one facing a sexual assault charge. And everything short of a life plus cancer sentence for every offense isn’t harsh enough of a punishment until it’s a relative you’re sending inside for a decade.

    But you swear an oath when you become a lawyer–at least in the jurisdiction where I practice. You promise to uphold the Federal and State Constitutions and to carry yourself in a manner promoting the profession daily. Which means you show up early on the days the judge complains about how backed up his calendar is with trials for your ten minute plea deal with all the forms ready in duplicate before he takes the bench. It’s why you smile at the person accusing your client of rape and introduce yourself politely before you rip their credibility to shreds. You gave your word, and from where I sit unless you live up to that word you’ve got nothing to your name.

    The unduly woke, the terminally progressive, they’ll leave the profession in droves once they realize their stringent adherence to personal pronoun preference means jack shit to the guy sitting next to them who’s primarily interested in getting out on personal recognizance. They’ll take to social media and bitch about the “institutionalized racism” of the system but they’ll never do anything about it because it’s easier to complain than to grit your teeth and fight.

    So if your personal beliefs are getting in the way of your zealous representation of the client, take a look for the sign marked “This way to the Egress.” Take it from me–you’ll be happier once you walk through that door than if you stay.

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