The Question: Seven Answers

Here is The Question: Why do you defend people who you know to be factually guilty?

The question is often phrased as “How . . .” or “How can you sleep at night when you . . .” but those demand smartass answers like “very well” or “on a pillowcase full of hundred-dollar bills.”

Typically, the laypeople (in which group I include civil lawyers and prosecutors) asking the question don’t understand the niceties of legal and factual guilt, so the question is usually “. . . people you know to be guilty,” which demands the answer, “they aren’t guilty till they’re proven guilty,” which is not smartass but will be seen as such by people who don’t understand that “guilty” is a term of art.

The Question assumes something that is true only rarely, if ever: that the criminal-defense lawyer knows what happened. Some reject the premise. It’s not the criminal-defense lawyer’s job to decide whether his client is guilty or not. Even if a client swears to have done the deed, the lawyer can and should doubt—clients lie to us, and do so for the strangest reasons.

But, for purposes of this post, accept the premise.

Why does The Question matter? Criminal defense lawyers don’t agonize over it—they just know. Most of the non-criminal-defense-lawyers asking the question will never, no matter how we answer, understand. For them, The Question is

almost always asked in a rhetorical, accusatory fashion, with inquirers never really wanting to know the exact approach, strategy or methodology involved in defending the criminally accused. Instead, they simply want to make a statement, essentially saying that they could never represent someone they believed was guilty, thereby indicting the criminal defense attorney for doing just that.

[John Contini.]

But there are folks who want to understand, and can understand, what drives criminal-defense lawyers to defend even those who they know have done really bad things.

I don’t get The Question a lot. Maybe I need to get out more. But when I am asked The Question, I like to be as persuasive as I can be. Helping someone understand why it is we do what we do can improve the world by making people better jurors and less willing to blindly follow the government out of fear.

It’s hard to know where the person asking the question is coming from. For some, the Sixth Amendment Answer is enough; for others (like Maricopa County’s voters) the Constitution is an irrelevancy. For some, the Biblical Answer resonates; for others, it’s a fairy tale.

So this post is an effort to categorize the various answers to The Question, with examples. I’ll update it as time goes along, as a reference for those who follow after.

I. The Sixth Amendment Answer

We swear to uphold the U.S. Constitution. Part of that Constitution, the Sixth Amendment, requires that everyone accused of a crime—not just everyone who a good lawyer thinks deserves it—have effective representation.

You wouldn’t expect a doctor (bound by the Hippocratic Oath) to decide whether to heal people based on their worthiness [Blonde Justice]; neither should you expect a criminal-defense lawyer (bound by the Sixth Amendment) to decide whether to defend people based on their worthiness.

“It’s different,” some might say, “because a doctor is healing disease while a criminal-defense lawyer is protecting people from justice.”

II. The Flawed System Answer

Don’t confuse what happens in court with moral judgment, [Scott Greenfield] or the law with justice. It’s not about truth or sin or right and wrong. The law is a blunt instrument. It’s about whether the government gets to put a human being in a box—probation, prison, or a coffin.

Cops lie [Scott Greenfield]. Prosecutors cheat. Juries screw up. Some laws should not exist, and other laws provide punishments that are grossly out of proportion. It’s a flawed human system, in which the mistaken judgments of flawed human beings either balance out (in which case an approximation of justice can result) or compound (in which case gross misjustice can result).

If I take it upon me to decide who is guilty, it’s almost certain that sometimes my judgment would be wrong [Rick Horowitz]. If I’m going to contribute my own mistaken judgments, it’s not going to be in favor of someone losing his freedom or his life—there are plenty of 25-year-old pukes who think they were born wise and are more than willing to do that.

III. The Biblical Answer

I’m not big on organized religion of any sort, and Christianity and I have long since parted ways, but Jesus set the example—when called on to judge the woman caught “in the very act” of a capital offense, he defended her. Successfully. [See also John Contini’s How Can a Christian Lawyer Defend the Guilty, which—oddly, to my mind—omits that tale.] Why did he defend someone whom he knew to be factually guilty?

IV. The Compassionate Answer

It’s as simple as this: I care about the person I know. In most cases, the complainant is an abstraction to me. His victimization is an abstraction. My client, on the other hand, is very human and very real. It is his tears I see, his hand I hold and his mother I console. I know my clients like no one else in the system. I empathize with my clients the way everyone else in the system empathizes with the complainants.

[David Feige.]

I don’t like hurting people. Is that so hard to understand? When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I can’t know whether anyone is truly guilty or innocent, or what they deserve, and frankly, I don’t care. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.

[Danielle Sucher, Legal Agility.]

Without compassion nobody will ever understand why we defend; with compassion nobody will ever need to ask. [Me.]

V. The Cog-in-the-Machine Answer

Any approximation of justice that the system creates comes about only because there are people fighting on both sides. If I walked away from one case because I thought my client had done wrong, the government would be able to do whatever it wanted to that client—which almost always (in serious cases) would mean punishment more severe than appropriate, even for really guilty people. Other lawyers would walk away from their cases, and the government would be able to do whatever it wanted to them too.

More than that, though, if we make things easier for the government on the cases where we think our clients did wrong, it frees the government to concentrate its resources on imprisoning and killing innocent people.

Unchecked, the government will abuse the innocent as readily as the guilty. Unchecked, all distinction except power fades. The guilty as much as the innocent, perhaps more, need and deserve an advocate. We are all, as Sister Helen Prejean likes to remind us, better than the worst things we’ve done.

[Jeff Gamso.]

VI. The John Wayne Answer

When a person comes to me for a defense, with the vast power of the government arrayed against him, no matter what he did before he is the underdog now. I stand up for the underdog. I protect the weak from the strong. Every man needs a code to live by, and that is part of mine.

VII. The Martin Luther Answer

Criminal defense is a way of looking at the world [Jeff Gamso]. We are criminal-defense lawyers. Defending people is what we do—how could we not? [Jamie Spencer, channeling me.] We defend. No more. It is our bond [Jeff Gamso again]. There are some men in this world who were born to do our unpleasant jobs for us [John Wesley Hall]; those men (and women) are we.

In other words, wir können nicht anders.

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0 responses to “The Question: Seven Answers”

  1. I get THE QUESTION everytime I see family. Everytime, I give the same response; part cog, part Luther, part Sixth Amendment.

    It used to bother me, but not anymore, because it finally dawned on me that most people won’t ever understand until they need a criminal defense attorney.

  2. Great post, Mark. Anyone who asks “The Question” should read it. I will make sure that your Uncle John, whose fancy-dancy Chicago BigLaw brother told him that Criminal Lawyers are the bottom feeders and who recently asked me “The Question,” reads this post. You make me proud.

  3. Great round-up of the answers, thank you! Though I think the John Wayne answer is actually a subset of the compassionate answer. Why focus on defending the underdog, except for compassion?

  4. I enjoyed all of this except the implication that prosecutors don’t wrestle with these issues. In a typical case, at least the ones with which I am familiar, the state can convict a defendant with or without your consent. Because of the increasing ratcheting up of mandatory minimums and splintering of judicial discretion in sentencing, the prosecution can often sentence without your consent. Except in cases with a legitimate factual issue or an available legal/constitutional question, much of the establishment of the parameters of fairness and proportionality fall on the agents of the state and the defendant, unfortunately but also on the merits of their own conduct and the available applicable law, end up somewhat sidelined. I’m not saying that’s great, and I’m not even saying that it’s fair. I *am* saying that your assumption that the prosecution doesn’t have to deal with these questions themselves is terribly underfunded by your “I don’t like authority” comments up until this point. You might not, but the agents of the state are as battered by philosophical interrogation at cocktail parties as you might have been, especially in larger cities with bigger problems of police misconduct and a more active press.

    The weight of the possibility of convicting an innocent person through error, oversight or zealousness does not fall solely on your side of the bar.

      • I’m not familiar with “Special English” so I’ll err on the side of extreme simplicity.

        Criminal defense attorneys catch shit. People say “Hey, how can you live w/ yrself?” Prosecutors catch shit. People say “Hey, how can you live w/ yrself?” In big cities where police naughtiness is a problem, it’s not unusual for the prosecutors to catch more shit than the defense bar does.

        Further point – prosecution and defense are stuck w/ eachother, almost like a dance. We are sworn to the same constitution, though what this means isn’t the same for the two sides. Mistakes have been made by both sides. While the relationship isn’t identical, I think you are making a mistake saying that the prosecution is something you can call “laypeople” Most of us understand what you do. Most of us appreciate it.

    • Randy Barnett, now a law prof at Georgetown, quit his job with the Cook County, Il. (Chicago) prosecutor’s office for conscientious reasons, because the people he spent most of his time prosecuting were not the “bad guys” but druggies and the like.

  5. I ask the person back, “if your17 year old had a bonehead moment and ended up being charged with a crime, would you want him to be represented by a lawyer?” The person always answers yes.

  6. I was surprised to learn this about myself, but I don’t really care one way or the other whether or not a client is guilty of the offense. So I find that I don’t really think about it that much either.

  7. Great post, Mark. I like all of your responses, though I especially like Judy Shields comeback. In response to your query, prosecutors DO get asked The Question, only it comes in two slightly different flavors. The first is the BigLaw, cocktail-party, curled lip, “How do you DO what you do?” as if the idea of battling over right and wrong and a person’s liberty is a legal concept best left down in the muck for the great unwashed to worry about. These folks are much to urbane and civilized to consider the practicalities of what happens in the gutter when man goes up against government. The other question, which is asked with increasing frequency, is the negative of the criminal defense version: “How can you prosecute someone knowing they might be innocent?” ADAs don’t even get the luxury of certainty built into The Question…the mere chance of a wrongful conviction forms the appalled foundation for the question (which is not entirely inappropriate). I had to answer both of these questions when I was a prosecutor, along with the more specific version of the second one that deals with the death penalty, on a regular basis. I often used responses similar — though quite opposite in their fundamental assumptions — to the ones you’ve given above. Emphasizing the safeguards in the system, defending the adversarial process in the courtroom as the only legitimate way of establishing facts, etc. That of course is another discussion entirely for another time, but I just wanted to point out that prosecutors are also asked variations of this.

    Again, great post and thanks.

    • I’m a former public defender. Some of my best friends have been prosecutors or former prosecutors. 😉

      My personal favorite answer to the question has always been the flawed system answer.

      This was a great post. I would agree, however, with some of the comments here. Prosecutors have to wrestle with issues of guilt and innocence in charging and in plea bargaining, and many appreciate the defense attorney’s position. Indeed, many prosecutors go on to be defense attorneys. Further, I have seen some prosecutors forced to to go to trial by their superiors where the prosecutor wanted to dismiss the case on the basis of lack of proof/innocence. I know of at least 2 such prosecutors who left their jobs over such issues.

      And, probably depending upon their locality, prosecutors can get asked a pretty damning version of The Question too. The public is savvy enough to comprehend that there are vast injustices within the system, and prosecutors get hit with that end of the questioning. How can they sleep at night knowing that they might be prosecuting an innocent person?

      Great post!

  8. This may be a variation of the flawed system answer, but I think it goes beyond a flawed system to a system that should not exist at all:

    The law exists to protect the wealth and power of the wealthy and powerful, much like slavery. The criminal justice system works to keep the poor intimidated and submissive. This whole exercise of power is immoral. I am like a medic on a slave ship. I don’t think society should be shipping slaves, but I try to give what little comfort I can to the victims.

  9. You left out the “I really need to pay the Student Loans, and AMEX is calling again, and the car payment is due in a month” answer.

    As a side note, I have to say I really really like the Judy Shields answer. When he became a teenager we had a talk with Alex and he was told that if he was ever arrested he was to say “I want to call my parents and talk to my attorney Mr. Mark Bennet.” Laura made him say it over and over till he got it memorized.

  10. My answer:

    I prefer defending guilty people. Innocent people can’t tell me what happened, they really aren’t much help at all. In some cases innocent people are more likely to get convicted than guilty people. It is also more personal responsibility on me should they get convicted. And they get put through hell, and enormous expense, at no fault of their own. It could happen to anybody.

    OK, Flawed System argument. The follow-up:

    The only case I almost personally turned down, because it disgusted me, was a dogfighting case. I’m just overly fond of dogs. Then I reviewed the evidence and discovered that my clients (4 of them) weren’t guilty. Eventually, they all got dismissed.

  11. I really appreciated the post, Mark, but I too have to question your inclusion of prosecutors as “lay people” less as a nit to be picked with this post, and more as a philosophy that seems to run consistent in your blog in general. Generally, your feelings about prosecutors make me feel sad. Either you’re so painfully irrationally anti-government that you can’t see your commonalities with prosecutors and that there are many who work hard to act in pursuit of the truth with genuine concepts of justice (including the potential for the rehabilitation of your client) at heart, or the prosecutors you’ve experienced are primarily lousy lawyers and people who just show up for the paycheck or are rabid zealots who should be put down. Your otherwise fantastic and intelligent writing seems to deny the former, and encourages me to assume the latter.

    Which makes me sad. I saw much of myself and the reasons and the way I choose to prosecute in this most recent post.

  12. Great post, and great answers. I love the John Wayne answer!

    Just as a side note, the reason the woman that Jesus defended (often referred to as the woman at the well) is not in the book you quoted is that it was not in the oldest copies of the biblical texts. Many people believe it is extrabiblical.

  13. Responding to Erin: Nearly all Bible scholars, including many who say the adulteress story that Mark cited was not originally in John 8, still agree the story is authentic history from Jesus’ life. Further, the Bible elsewhere says Jesus is our “advocate” before God whenever we sin. If Jesus is a defense attorney, certainly other people can be. 😉
    On another note, John 8 doesn’t say whether the adulteress was the woman at the well or Mary Magdalene. My personal belief — after about 20 years researching the topic in Christian, Jewish and Gnostic writings — is that the adulteress was Magdalene, that she eventually married the apostle John, that he didn’t want to discuss her adultery without her approval while she was alive, and that he therefore saved discussion of it for a second edition of John 8 that he released later in life. Either way, Mark’s WWJD answer works.

  14. I lose more sleep and suffer far more anxiety when I represent clients I believe are INNOCENT – particularly those that appear to be factually and morally innocent. Defending guilty clients is easy. My job is to defend a citizen’s due process and due course of law rights under any and all state and federal law applicable. Specifically, we are charged with holding the state and its evidence to the high burden to be met by the state when it seeks to deprive a citizen of all or portions of his/her life and/or property/assets/other valuable stuff. In a way we not only defend that person, we are also defending a set of structural safeguards of true liberty regarded as so critical to free citizenry that the founding fathers and their philosophical influences believed these ‘natural rights’ had divine origins and were the self-evident birthright of all free people (umm…for them that meant white, European men like themselves), and were guarded jealously and zealously. And by defending that accused citizen vigorously, we also are defending the liberty and freedom of every other citizen from oppressive state action and policies. Defending the guilty is not only easy, it is a critical ingredient to the maintenance of the freedom and liberty of all our fellow citizens and acts as a bulwark against unlawful expansion of state infringement of our general liberty and rights as citizens.

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