2016.016: Jill Filipovic Makes Readers Stupider


When someone writing for a popular website says:

Before I was a journalist full-time, I was a lawyer. I didn’t do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I’m not a religious person, but if there is anything I believe is the Lord’s work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense — the only line of defense — for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

… you just know there’s a big “but” coming along.

And sure enough:

There’s an opportunity and an obligation for the legal profession here too. While the American Bar Association offers lots of information on representing or recommending legal counsel to victims of sexual violence, there’s far less guidance on the ethics of defending those accused. There’s no question that it is of course ethical to defend accused rapists, but the how matters. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming — and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client — especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place — which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case?

These are not easy questions, and, even among feminist lawyers, there are not simple, clear answers. What is obvious is that we are long overdue for a profession-wide grappling.

Criminal defense is the Lord’s work … but maybe not if it feeds into misogyny and victim-blaming. It is (“of course”) ethical to defend accused rapists, as long as you don’t defend them too zealously.

Jill Filipovic says these “are not easy questions.” That may be true among the ethically clueless, but they actually are easy questions among the only lawyers whose opinion matters: not “the profession,” but the criminal-defense lawyers who face from day to day the question, “how hard should I come at this witness?”

Filipovic casts herself as one of those facing these questions: “is there some greater duty we owe society…?” Filipovic is not one of us. Most lawyers are not criminal-defense lawyers. They might like to think of themselves as being in the club with Atticus Finch, but they aren’t. They belong to very different clubs, they make different impacts on the world, and most importantly they have different measures of success. Criminal-defense lawyers don’t generally give a damn what these other lawyers think about what we do.

Why? Because unless you are on our jury, our contract — the Sixth Amendment — trumps your feelings about the job we are doing, the questions you are asking, or the arguments we are making. We figure — and Filipovic’s article (she’s the daughter of a public defender, no less) confirms — that if you are not one of us you have no clue about the ethics of the job.

So: You want to shame us into going easy on accusers? The Sixth Amendment trumps your shame. You want to call it “victim blaming” when we don’t go easy on accusers? The Sixth Amendment trumps your catchphrases. You want the ABA to offer guidance on defending those accused of rape in a politically correct way? Screw the ABA. The Sixth Amendment trumps that too.

There is plenty of opportunity for social activism when we are off duty, but the criminal-defense lawyer’s sole duty to society in the representation of a client is to defend the client as zealously as the law permits. This is neither a close call or a new idea:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

—Henry Peter Brougham, 1st Baron Brougham and Vaux. (H/T Nicholas Sarwark.)

(I’ve also written about this here.)


7 responses to “2016.016: Jill Filipovic Makes Readers Stupider”

  1. Thank you. After Ken White and SHG’s posts today, I was starting to wonder if there were any criminal defense attorneys that actually handle sex crimes that write blogs. Bizarre watching the white collar and the drug defenders fall all over themselves to say not all defense attorneys would be happy to get their client a six month jail sentence and how crazy the judge was. Sickening really.

    • I have some things to say about the judging, but I’ve reached out to the defense lawyer for comment first. Because unlike some people I don’t assume that the hyped story reflects the truth.

    • I don’t think that’s what Ken was saying at all. He was saying he personally disapproved of the sentence, not that he wouldn’t be happy to get it for a client. We can disagree with a result personally while professionally approving of the job the attorney did.

  2. I’m curious, Mark, about whether any of the legal restrictions on defense attorneys as officers of the court seem to you unreasonable. I’m not an attorney, and not very good at assumptions about other people’s professions, but my understanding is that there are occasions when the defense attorney is required to place the good of society, in the form of the integrity of the judicial system (as the system defines it), above the client’s interest, perhaps for example by not introducing evidence known to the attorney to be false. Are any of these restrictions unreasonable, in your view? If memory serves, the Supreme Court a few years ago affirmed a defendant’s right to counsel, but not necessarily to competent counsel, or an attorney who did not doze off during a trial; every system seems to place the interest of the system first. I hope that all defense attorneys try to live and work by Brougham’s principle, but I am not fully confident in that.

    • There are laws (including ethical rules) that limit what a lawyer might do on behalf of her client. Most of these laws are in all cases reasonable, and all of them are in most cases reasonable.

      If in a particular case a law is unreasonable the lawyer is free to break it, provided only that she follows Benett’s Law of Rules: If you can’t pay the penalty proudly, you weren’t justified in breaking the rule.

  3. An investment banker closing a factory that has been a small town’s economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It’s choosing to make his living this way which makes him an asshole.

    A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It’s choosing to make his living this way that makes him an asshole.

    Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

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