Tuesday Talk*: For The Cause Or For the Accused?

There are some very popular people on social media, with tens of thousand of followers, gushing about the injustice of the system. Much as their assertions tend to be half-baked, quasi-accurate by including only the details that further their posture and omitting entirely the requisite facts that expose the claims of heartbreak as manipulative hogwash, the audience is non-lawyers.

They twit for the benefit of the unduly passionate, to convince them that the system is horrible and broken, that District Attorneys other than the tiny subset of progressives they adore are evil, that cops are just racist killing machines and that they are the heroes who sacrifice to save society by fighting the good fight, mostly at night arraignments and occasionally in post-conviction exoneration cases.

So what, you might ask? If it’s just petty deception of the useful idiots to create a critical mass for reform, isn’t it worth it? Perhaps, subject to one’s tolerance for lying, but the problem is that it’s not just the unwashed masses, but a lot of law students and baby lawyers (and more than a few lawyers with sufficient experience to know better) seem to have gotten caught up in the fervor.

This prompted me to pose a question on the twitters.

Curious whether law students who want to become PDs do so because they want to serve the cause of justice or they want to defend the accused and Constitution?

An old white man from Nebraska had already given his answer to the question as number 1 in his criminal defense lawyer listicle.

1. Real criminal defense lawyers represent clients and not causes.

But then, what does he know? Iowa prawf Andy Grewel immediately asked the obvious question.

Forgive my ignorance, but are those incompatible?

I replied, “at times,” which should be, but isn’t, obvious. Since this might prove elusive to some, here’s an example** of where a conflict might arise.

A lawyer represents a defendant accused of a heinous rape. She knows her client is guilty, because he told her exactly what happened. The client wants to go to trial, as is his right.

The case relies entirely on the testimony of the complaining witness, the woman he raped. She’s fragile and has psychological issues. She takes the stand and testifies. The lawyer knows” her testimony is accurate, but the lawyer also knows that because of her fragility, her ‘issues,” she is susceptible to being destroyed by an artful cross examination. 

If the lawyer rips her testimony to shreds on cross, her testimony will come off as incredible to the jury and the defendant will walk. Then again, the lawyer, knowing her testimony to be truthful, also knows that a hard cross and a not guilty verdict may well destroy this complaining witness’ life. 

Does the lawyer destroy the victim or back off, knowing that it almost certainly spells conviction for her very guilty defendant?

Sometimes, the ethereal and philosophical concept of justice aligns with the representation of a criminal defendant. Sometimes a defendant is innocent. Sometimes a defendant is overcharged. Sometimes a defendant’s guilty, but his constitutional rights were violated in the process (although that too is a dubious ethical problem, as the “constable blundering” doesn’t make the defendant any less guilty). But in my question, I sought to remove the constitutional rationale from the mix by putting it on the side of defending the accused rather than serving the ephemeral cause of justice.

So the conflict isn’t posed in every case, but it will arise in some, and if a lawyer does this for a while, she will stumble into a case that will test her resolve. When the choice has to be made, as it inevitably will, which choice does she make, “justice” or the defendant?

*Tuesday Talk rules apply.

**This is an example. It’s not “the” example, or “the” problem, but just an example. Do not obsess over it.

37 thoughts on “Tuesday Talk*: For The Cause Or For the Accused?

  1. Wilbur

    I wonder if Professor Grewel asked that question for himself or just to stimulate and further the discussion of your question. I hope it was the latter.

  2. Kathleen Casey

    “My client may have done it this time and may have done it dozens of times before and never got caught. But the prosecution has to prove it.” I wish I thought of it but I didn’t. A superlative defense attorney said it years ago (in a defense conference room, not in open court). I keep it in mind.

  3. Howl

    There is also the chance that destroying the victim on cross will make the jury more sympathetic to her.
    One could also tell the creep to get another lawyer.

    1. SHG Post author

      The hypo inherently assumes that won’t be the case, or it wouldn’t result in a not guilty verdict, so don’t go down that rabbit hole. The “cause of justice” crowd agrees with you, that decent human beings don’t represent evil defendants, and bail on their duty. Did you inadvertently pick your team?

      1. Howl

        Inadvertently, for this particular example, maybe. I don’t like teams, too constraining. I think I understand both sides, and the fence is a comfortable place for someone who’s got no dog in the fight. But at the risk of spreading more stupid, and since It’s Tuesday, I’ll keep talking when I probably shouldn’t.

        A lawyer has a duty to represent the client, even the evil ones. Does that duty include accepting any paying (or not) client who comes their way? Does that duty include doing evil, to the point of turning the victim into a life-long basket case, or worse?

        Principle, utility, public good, justice, duty – all good, but sometimes they clash. Then conscience must guide. We all have to live with the choices we make.

        Forgive me if this makes folks stupider. Just say so, and I’ll go back to the DJ booth. Until next time.

        1. SHG Post author

          Sitting on the fence tends to result in painful splinters. Think through your questions and see where you come out. As the good judge said, criminal defense is not for everyone.

    2. wilbur

      That’s a new one on me … doing their laundry on stage while performing. Is that in their rider or is it just something they decided would be efficient? Or is it a Rush thing or just a one-off? Enquiring minds.

      1. JR

        Since it is Tuesday I guess I’ll answer this off topic question.

        Long ago the only thing put into a PA system was vocals, as you played large venues you needed bigger and more guitar and bass amps. That changed and the stage amps don’t need be much. However perception is everything. You can’t be a massive loud hard rockin’ band unless you have a big stage of guitar amps that go to 11.

        This is such an important thing that several companies exist that build fake speaker cabinets. Some are made out of balsa wood so one roadie can pick the whole structure up with one hand. Name the amp type, how many, full back, or only half way…. they will make it for you.

        In most cases the guitar player is only using at most one real out out a big stack, or the more common thing is to have an amp back stage in an isolation box with a mic in it.

        Rush knows this and thought way have the fake amps on stage. If no amps what do put in their place on the stage? Might as well be chicken cookers or washing machines.

        See it was a joke…. they made a funny.

        1. MIKE GUENTER

          Rush has always promoted themselves as a “Garage Band”, so that is why they have the washer and dryer as their stage set up. I guess the audience is supposed to think they’re standing out in the driveway looking into the garage/stage while they wail away on their instruments. YMMV

  4. Erik H.

    I’m still scratching my head about how the fuck anyone can call themselves a lawyer and act like a god to screw over their client. OK, I understand most of law school is a joke, but didn’t they at least learn this stuff in crim pro?

    If you have a client, the only ethical practice is to try to win for the client. If you want justice, do it in your spare time. If you can’t separate your work life and your non-work life, then don’t take clients, and go find some other simpler job, like pundit or law professor.

    FWIW, that same annoying “justice” shit pops up in civil cases, as well. It’s insane. Yes, counsel, I agree, the Wage Act can have some very unjust results. Do I give a shit? Am I your Senator? Do I write the law? No? Then pay my $%## client already.

  5. B. McLeod

    Well, what will happen is the progressive darlings with the fervor will throw the match and send their clients up the river. Also, unless they do it so blatantly purposefully that the court itself has to step in (a mere softball cross won’t ring the bell), nothing will be said by anybody anywhere. The conflicted lawyers will remain in the system, doing that work they (really) love. Like the nurses who quietly euthanize patients to relieve their misery, they will always know their true calling is higher than any rules.

  6. Richard Kopf

    Scott,

    To me, it is not even a close call. You destroy the witness, albeit trying not to be unnecessarily cruel but not shirking from cruelty if that is required for a not guilty verdict.

    “Justice” (requiring an unknowable epistemological answer) is for small children and serious philosophers to grapple with in the most abstract of terms. CDLs have a higher calling and tougher problem. They represent real human beings and don’t have the luxury of shilly shallying about the morality of making the witness’s life hellish. In short, criminal defense is not for everyone.

    All the best.

    RGK

  7. Kathryn Kase

    I am shocked, shocked that no one here has cited the Hon. Byron White’s concurring and dissenting opinion in US v. Wade, 388 U.S. 218 (1967), upon which your hypothetical appears modeled. Wrote Justice White:

    Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. [Footnote 2/5] To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must
    be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.

    Id. at 256-58.

    1. Richard Kopf

      Kathryn,

      Among other things (like a broken nose from play pro football), the Justice was a realist. I dearly wish we had more like him. Thanks for reminding me.

      All the best.

      RGK

    2. Howl

      Just to be a doubling-down wise-ass, I gotta ask:

      Why is it “Justice” White, when “justice . . . is for small children and serious philosophers to grapple with?”
      Why not just call him “referee” or “mediator?”

      White wrote “Undoubtedly there are some limits which defense counsel must observe . . .” Did he mean there are limits within the bounds of the law, or that the bounds of the law are the only limits?

      1. Howl

        Oh, and while I’m at it . . .
        Justice (there’s that word again) White seems to be making a distinction when he wrote “defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth,” and continues with “just as he will attempt to destroy a witness who he thinks is lying.” Is he saying it’s OK to destroy a lying witness, but not a truthful one, that a truthful one can be impeached but not the point of destruction?

        1. SHG Post author

          “Just as” means “the same as,” so same thing. And the title “Justice” is just an aspirational title. It means as much as the marketing ploy “protect and serve.”

          1. Howl

            So there is no difference between impeaching the truthful and destroying the liar?
            Impeach is the same as destroy? Seems to be a matter of degree. Curious mix of words if he meant the same thing. It would be much less confusing if he just said “impeach (or destroy) both the truthful and the lying witness.” Could it be he recognized the duty to the client, but, as he said ““Undoubtedly there are some limits which defense counsel must observe . . .” and made the distinction as an example?

            1. Howl

              Sorry I missed your edit before I replied. Aspirational title – aspirational, as in having a strong desire for something, like, oh, “Justice.”
              So it is all just bullshit. A very useful system of bullshit, and not one which I would like to do without, for it did OK by me. But bullshit is still bullshit, even when it’s useful. My farmer friends keep having to remind those who complain about the smell.

            2. Howl

              “You should write him a letter . . .”
              No reply button.

              Got it. Discussion over. I still appreciate that you took the time you did.

        2. David

          Not on your point but this excerpt, White was saying impeach, even if the lawyer thinks the witness is telling the truth.
          But what if the lawyer knows – not thinks, but know (e.g. because of what their client has told them) the witness is telling the truth, does that not restrict (at least in some jurisdictions) what they can ethically do, in examination or argument?
          If so (that’s if, and even on a Tuesday I’m not asking for an answer), in the example given (the “heinous rape”) the lawyer might properly and ethically challenge the memory of the witness, identification of the accused because it was dark, etc., but (depending upon the jurisdiction’s rules) could not ethically say they were making it up, nothing happened, etc.

  8. Noxx

    A zealous defense should, like Gods mercy, fall upon the just and wicked alike. “You can neither earn that, or deserve it” -Portis

    1. SHG Post author

      Client: What happened?
      Lawyer: Justice prevailed.
      Client: Appeal immediately.

      The problem with pining for justice is you just might get it, good and hard.

  9. Keith Lynch

    Support the client, not the cause. Just because you’re certain he’s guilty doesn’t mean you’re right. Just because *he* thinks he’s guilty doesn’t mean he’s right. Lying police interrogations of innocent people who trust the police can lead them to believe that they’re guilty and had somehow repressed the memory.
    Such interrogations have even led to suicides by innocent defendants who were convinced that they were criminally insane. ACAB.

    1. SHG Post author

      You raise an important point that non-lawyers might not realize: we think we know, but we weren’t there, we aren’t witnesses. We only know what we’re told, and it’s often wrong.

    2. B. McLeod

      Sometimes clients get it wrong on the law as well. Over the decades, I had two cases in which clients thought they had committed a crime, but in fact had missed an essential element.

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