The Defense Crack

For those who haven’t had enough of the Harvard/Ron Sullivan debacle yet, Randall Kennedy has written an op-ed about Harvard’s disgrace in the New York Times. As a Harvard law professor, he’s moderate in his approach, meaning that the dolts who can’t follow his words, and the dolts who won’t, remain unconvinced. That can’t be helped.

But there is a tangent, deriving from the scenario, that has permeated the unduly passionate minds of the woke that portends deep problems in the future.

MSNBC television personality Chris Hayes, no stranger to empathy he, asked on the twitters:

Vis a vis the latest Harvard story, the question I wrestle with is, as a matter principle, isn’t it sometimes justified to criticize a lawyer for which clients they choose to take on?

Put Sullivan aside. Put Weinstein aside. Put aside the claims that Sullivan’s non-renewal as faculty dean was for reasons that were claimed years earlier but deemed too insignificant to address, or the bizarre conflation of dean and Title IX investigator. Instead, consider only the question posed by Hayes, which put in the spotlight an issue that arises occasionally.

Remember when Hillary Clinton was castigated for her representation of a rapist? Whenever a criminal defense lawyer runs for office, the awfulness of their clients is thrown in their face. The defense tended to fall along principled lines before the conflicted ideology of social justice seized the minds of the woke, whereupon a dilemma arose.

But we chose these clients? A rationalization has appeared to distinguish the virtuous public defender-types, who have no choice in the horrible people they defend, from those of us who do so out of choice. It’s a lie, and the downtrodden public defender-types are as guilty of perpetrating this lie as is the New York Times.

We would all be thrilled to defend the Pope from drug charges, but he doesn’t get indicted too often. On the other hand, the people who do get indicted have a right to counsel too. Defending the Constitution, and putting the government to its burden of proof, is what we do.

I take no pleasure in pointing out public defenders’ failings, though they don’t necessarily return the favor. In order to rationalize what they do with what private criminal defense lawyers do, they’ve constructed an argument that they are  constrained, by job and duty, to defend awful people whereas we chose it. If they rep a rapist, they have no choice. If we rep a rapist, it’s a reflection of whom we choose to defend, meaning that at best we’re money-loving whores and at worst rapist-loving whores. Or both. So they escape taint. We do not.

And if the rapist happens to be a billionaire, which is itself a status deserving of intrinsic hatred, then there can be no excuse. After all, even the argument that every defendant deserves a zealous defense doesn’t mean that the billionaire can’t find some other money-loving or rape-loving whore to do his bidding, so it’s not as if it’s you or he goes unrepresented.

Of course, the logic fails to withstand even cursory scrutiny. Should every “decent” private lawyer refuse to defend the hated defendant, then the only lawyer who would choose to take on such a defense would be, by definition, indecent. If only indecent lawyers represented indecent defendants. Defendants would thus be tainted as indecent by dint of the indecent lawyers who would deign to defend them, going into trial. They would be spurned by decent lawyers for their awfulness, their guilt.

The question, however, comes at the “problem” from the perspective of the selectively empathetic. As Hayes is conflicted, torn between his feelings for the sad victims, and children made to feel unsafe by the possibility of someone being their proximity, their culture, who doesn’t abhor the people they abhor, how can one not feel that there should be some line that shouldn’t be crossed?

Mind you, the public defenders who promote this perception provide some sense of legitimacy to the inquiry, since they are obviously on the defense side and if even they find the question reasonable, and the choice of representing wealthy but horrible (read, “we know he’s guilty of this crime that disgusts us”) defendants, then the non-lawyers can’t be completely crazy.

This isn’t how real defense lawyers perceive their duty. And by italicizing “real,” I mean to point at those public defenders who would rather undermine the defense function, would sacrifice the Sixth Amendment, then face the fact that their social justice ideology is in direct conflict with what real criminal defense lawyers do. We defend.

We defend anyone accused of a crime. We do not refuse representation because the defendant is too wealthy, his crime too awful, his skin color too pale or his genitals too stiff. We couldn’t care less that the woke have deemed him too guilty to be worthy. We do not judge. That’s for the jury to do. We defend.

The notion that criminal defense lawyers should become the advanced guard of morality and justice is one that appeals to those for whom such vagaries protect their feelings from dispute. They can afford to take refuge in their preconceived outcomes, as it allows them to pretend their feelings are always justified. That’s fine, if that’s the way you want to live your life. Criminal defense lawyers, however, have chosen to live their lives in a way the puts the Constitution first, puts a duty to challenge the government and its complainants to prove their case first.

Not everyone, or every lawyer, is cut out for criminal defense, as they can’t overcome their emotions to take the cold, detached view of their duty to defend as a fundamental principle, no matter who their client may be. But the inability of people like Hayes, and the woke public defenders, to overcome their feelings and put principle first will serve to impugn our purpose to defend the Constitution and challenge the government if not shut down.

I responded to Chris Hayes.

In criminal defense, no. Never.

There is no other answer.

35 thoughts on “The Defense Crack

  1. Sgt. Schultz

    You’ve been getting down on the woke baby PDs a lot lately. About time. These smug little shits are becoming increasing dangerous as they try to parse out constitutional rights based on race, gender, while denying them based on crimes they don’t like.

    1. SHG Post author

      There are plenty of PDs, mostly the more experienced ones but baby PDs too, who are outraged at the conflicted social justice views of their colleagues, but the ones (like Appellate Squawk) who question become immediate pariahs, if not unemployed, so most bite their tongue. As usual, it’s left to some mean old man to call bullshit on their bullshit.

    2. Onlymom

      Good for SHG. as far as i am concerned the woke need to be put back to sleep for the protection of themselves and others with a quick tap of a baseball bat.

      As for the question from Chris. Sorry but unless you are supporting them the answer is NO.

      What they do in their job and their life is nobody’s business but their family and whatever Supreme being they believe in.

      1. Kirk A Taylor

        The fact that I’m unreasonably nervous over what it means when a lawyer types my first name followed by a period only serves to further prove my point to myself.

  2. Noel Erinjeri

    Me: Resist the urge to point out #notallpublicdefenders think this way. Scott knows this, and he will mock and deride you for wasting his bandwith by pointing it out.

    Also me: But…

    Me: Resist, I say! Or you’ll regret it.

    Also me: [types this comment]

    Me: Idiot.

  3. Jay

    Now now old man, no need to rattle your old saber. You need only recall for the youth the “cab-rank” rule whereby a barrister, something like a taxi driver, has to accept any brief to appear in a court in which he practises even if he wishes to avoid doing so. This is considered to be one of the golden rules of the Bar and, once established by Thomas Erskine in 1792, it has become today enshrined in paragraph 602 of the Code of Conduct of the English Bar.

  4. ShootingHipster

    Another non starter from Chris Hayes. Yes, I’m talking about using vis-à-vis. What a clown.

  5. Beverley Watts

    The criminal defense options of billionaires is not the only issue currently decided by the loud voice of the offended. Chris Darden was recently forced to step down from his pro-bono representation of a defendant from a completely different economic stratosphere for primarily the same reason— the status of the victim negates the right of the accused to a defense. Focusing on the snowflakes of Harvard certainly has put the issue in the lime light, but it is a much bigger issue.

    1. SHG Post author

      This has been an ongoing issue here, but Sillivan has focused broader attention on it, and the underlying rationalization of who’s worthy of a defense and who’s tainted by defending is now being exposed. You’re absolutely right, and if the defense function is to continue, the lie has to be exposed and this taint must come to an end.

  6. Richard Kopf


    When I was young I wanted to and did take on private clients charged with horrible crimes. Perhaps that makes me immoral or amoral. Now that I am old, I want to die before the nonsense you rail against becomes an operative principle for private CDLs.

    Thanks for writing this. Your anger and clarity give me a reason to believe I may live a few years longer. I fear however that time is not on my side.

    All the best.


    1. SHG Post author

      I fear that the Stones were wrong, and time is not on either of our sides. I wonder who will pick up the slack when we’re gone?

      1. Richard Kopf

        Skink, my dear friend, I’m a weak atheist or a strong agnostic. Consequently, I doubt that I will be able to smoke a cigarette nine miles long after my death. Same, same booze and women. Bummer!

        All the best.


  7. Pedantic Grammar Police

    Randall Kennedy, Harvard law professor… for how much longer? Doesn’t he know that it’s wrong to defend a defender of an accused offender?

    Wrongthink is already unacceptable; publishing those disallowed thoughts is unforgivable.

    1. SHG Post author

      This isn’t the first time he’s spoken out on this issue. He’s got integrity and guts.

      1. Pedantic Grammar Police

        That’s what I was thinking, but i didn’t want to be accused of giving a tummy rub, so I typed something sarcastic instead.

  8. Will J Richardson

    Last paragraph of the Oath of Admission to the Florida Bar:

    “I will never reject, from any consideration personal to myself, the cause of the
    defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me

  9. Liam McDonald

    I wonder if Chris Hayes also thinks violent criminals do not deserve medical treatment if they are injuried during their outburst.

    1. SHG Post author

      I think the analogy would be whether the doc who chose to treat the criminal should be subject to criticism.

  10. John J

    There’s always been a disdain for lawyers defending particularly unpopular clients. The classic Mob lawyer or defenders of large corporations accused of harming people for profit would not be invited to liberal dinner parties. But with the attacks on lawyers like Sullivan, and the shameful pandering to juvenile activists by administrators and other adults, we are entering a new dark age of justice where, in certain types of cases, CDL’s only acceptable role will be to plead for mercy after the conviction. And if they are the new woke CDLs, they won’t put much effort into that.

  11. Ray

    Haven’t you said that you won’t represent people accused of looking at child pornography?

    1. SHG Post author

      Not that I won’t, but I don’t. But the reason isn’t that they are unworthy, but that I don’t think I can provide the level of representation to which they are entitled because I find the evidence too repugnant. That said, if they were unable to find a lawyer, I would do it nonetheless. Nuance matters.

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