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.