I don’t know much about Debo Adegbile, President Obama’s choice to head the Justice Department’s Civil Rights division. I know that he could hardly be more of a disaster than the current Attorney General, Eric Holder, and that the odds are that he would have to be much better. It may be that Adegbile is superbly qualified; it may be that he isn’t qualified at all. But I do know, with 100% certainty, that his representation of a convicted cop killer to seek to overturn his conviction is completely, absolutely irrelevant to his qualifications or character, and that for conservatives, Republicans and GOP Senators in Adegbile’s confirmation hearings to argue otherwise is both irresponsible and contemptible.
I first learned of this controversy from conservative radio host Mark Levin, who can really be an ugly hypocrite at times, and this was one of those times. Levin is a distinguished lawyer and an ethical one*; I refuse to believe that he does not comprehend ABA Model Rule 1.2 (b) or its importance to his profession. It reads:
“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
This principle is essential to allow, not merely the justice system but the entire rule of laws in a democracy, to function properly, and any lawyer who cynically, unethically, and dishonestly undermines it is playing with fire. “It is a move,” writes Prof. Jonathan Turley, “that strikes at the heart of the notion of the right to counsel and due process”—-but it is much more than that. If every citizen does not have full access to the laws of the land, the ability to use them to his own benefit and protection whatever his purpose, as long as it is legal, then this is not a government by the people and for the people, but rather a government of law-manipulating specialists and experts who bend ordinary citizens to their will through the use of complex, convoluted, jargon-riddled statutes and regulations that their victims can’t possibly understand.
Every citizen must be allowed to have the loyal, trustworthy services of not only a lawyer but the best lawyer affordable and the lawyer of his or her choice, or our democracy is a sham. For this to be possible, we must not project that citizen’s motives and character on the lawyers who are the only bridge between the laws and citizens’ ability to be something more than victims of them.
In short, it says nothing of Debo Adegbile’s fitness as a public servant that he represented a convicted cop killer, a cannibal, Son of Sam, Spiro Agnew or Willie Sutton. It simply says that he is a lawyer, and one who embraces the traditional ethics and aspirations of the profession. Abraham Lincoln won fame getting an acquittal for a friend whom Lincoln knew was guilty of murder, but the prosecution didn’t have the evidence to prove it. Good. Does this mean he was pro-murder? Clarence Darrow used his extraordinary persuasive power to stop over a hundred men accused of murder—most of them guilty, some of them certifiable monsters— from being executed. Good. They were citizens, they had as much a right to use the laws that offered them protection as the government had to use other laws to threaten their lives and freedom. Was Darrow a fan of killers? No, he was fan of making sure ordinary people weren’t crushed by laws and systems they could never understand, use or survive without the help of a lawyer…in his case, the greatest lawyer of them all.
J. Christian Adams, the former Justice Department attorney who was a casualty of the New Black Panthers fiasco (where Obama’s race-biased Justice Department decided not to prosecute two intimidating members of the group for conduct at a polling place that would have been an automatic offense if they had been white), is also attacking Adegbile for his choice of clients. Disgraceful. I might send him a DVD of “The Conspirator” so he can reacquaint himself with the best ideals of his profession. Adams, to his shame, bases his argument that Adegbile ought to be condemned for the acts of his criminal client on this intellectually dishonest mind-offal:
“Mumia [the convicted killer, Adegbile’s client] had been convicted and represented by counsel at his trial decades earlier. The NAACP was involved in a federal habeus corpus challenge to his conviction thirty years later. This was a civil case, not a criminal one. At this stage of court proceedings, there is no constitutional right to counsel. This is particularly so when a murderer loses before the federal trial court, and appeals an adverse decision.”
Deceit. True, the 6th Amendment only guarantees legal representation in criminal trials. But the legal profession in the U.S. and, as Adams, like Levin, must know, has always maintained as a core ethical principle that no American should lack for legal representation for any legitimate purpose, and every bar association holds to that ideal….as they must. The principle Adams and Levin are advocating, in contrast, is a sinister one, where lawyers rather than judges or juries pass premature judgment on the claims and needs of citizens, and withhold competent access to legal remedies according the their personal assessments regarding the validity of a citizen’s motives. This, of course, gives unacceptable power to lawyers, making it their choice who gets the protections of our justice system and who does not.
The danger of this contention cannot be understated. Ironically, it has typically been the dictatorial Left that has argued for such a distortion of the legal system. In 2011, noted law professor Deborah Rohde argued that no lawyer or law firm should agree to represent the House of Representatives in the legal defense of a passed (by duly-elected Congressional representatives) and signed (by a Democratic President) law of the land at the time, the Defense of Marriage Act, because she (and all the good, virtuous, right people who just know what laws should be upheld and which should not) had decided that to do so was unethical. She wrote in the National Law Journal:
“Should lawyers in civil cases decline a client whose objectives or terms of representation they find objectionable? In his letter of resignation, Clement stated that his “thoughts about the merits of DOMA are…irrelevant.” Many lawyers share that view. They hold Clarence Darrow’s belief that their role is to defend, “not judge” their client. But that simple, and financially expedient, assertion, begs the question of what the lawyer’s role should be in civil contexts. For criminal matters, society has a strong moral justification in ensuring that every client has effective representation. When life, liberty and reputation are at stake, it is critical to provide adversarial checks on state power. Vigorous advocacy for all defendants gives law enforcement officials incentives to do their job effectively within constitutional limits. Protecting those who are guilty is essential to preserve the rule of law and to protect those who are not.
“In civil cases, the moral calculus is different. Except in rare circumstances, civil claimants have no right to counsel. The notion that lawyers should check their conscience at the door in these cases has implicated the profession in some of the worst public health and financial crises in the nation’s history. We do not, and should not, applaud the lawyers who enabled clients’ resistance to enforcement of civil rights guarantees or to health warnings about cigarettes. Lawyers, no less than other individuals, have a moral responsibility to consider the consequences of their professional actions.”
Rhode was proposing no less than a political, moral tyranny of lawyers, and hypocritically so, since she was one of those who correctly excoriated Pentagon official Charles “Cully” Stimson, the Bush official who had to resign after he criticized lawyers who represent terrorism suspects in Guantanamo Bay as the equivalent of traitors. So we shouldn’t judge lawyers by their criminal clients, but absolutely should by their civil clients, is that right, Professor? So you agree with Levin and Adams that a technically civil action to show that a criminal conviction was unjust can only be handled by a lawyer who approves of the underlying crime, right?
Ridiculous. Disgraceful. Un-American. And horrible legal ethics.
Senator Chuck Grassley (R-Iowa) can be slightly forgiven, I suppose, for his lack of comprehension of this issue: he’s not a lawyer. Still, his decision to let the wife of the slain policeman in the case testify in Adegbile’s hearings is a cheap and dangerous stunt, and even a non-lawyer (Grassley is not an uneducated man) should be able to understand why this is unfair to the nominee, sets a terrible precedent, and, like so much else that happens in Washington, makes the public less civically literate. Professor Turley again:
“The problem is that critics seem to view the representation of a killer as a celebration or endorsement of the crime. If Adegbile has extreme views, we should hear them. That is a relevant concern and has been raised with regard to positions taken as legal counsel to NAACP’s Legal Defense Fund. However, the attention on his confirmation seems largely to focus on the fact that he dared to represent a hated individual. Criminal defense, particularly for indigent clients, is often a thankless job despite the legacy of such work found in the likes of John Adams. However, this hearing creates a clear chilling message for young lawyers and law students that they should turn down such cases if they do not want to bar any hope for professional advancement.I am equally disturbed by the comment of Chuck Canterbury, president of the Fraternal Order of Police that “This nomination can be interpreted in only one way: it is a thumb in the eye of our nation’s law enforcement officers.” The impression was that the insult was nominating a lawyer who represented an accused cop killer. It that is the intention, it is a careless and thoughtless position. I have represented law enforcement personnel and I have sued police officers. I even represented officers of the Fraternal Order of Police. I will remind Canterbury that many denounce lawyers who represent officer accused of abuse or wrongful shootings.”
Yes, do remind him of that, Professor, and let’s remind all the conservatives using this irresponsible tactic where it leads. It leads directly to citizens being slaves to their own nations’ laws, because they can’t possibly access them on their own, with lawyers deciding who is worthy of being able to take advantage of our “inalienable” rights, and who has the “privilege” of legal representation. It leads directly to Prof. Rhode’s utopia where causes she doesn’t approve of and corporations she thinks are bad can’t find competent legal assistance when they are over-charged for taxes or persecuted by over-zealous regulators or legislated out of existence, because “bad” people and companies and organizations don’t deserve lawyers, and the lawyers decide what is “bad.”
*Except when he is consciously appealing to bigots and racists, as he was yesterday when he intentionally mispronounced Debo Adegbile’s name, saying, “Whatever his name is; I can’t keep track of all the consonants.” Funny! How to play the “Otherness” card, Mark. He’s got a foreign-sounding name, so he’s not really an American; we get it. Imagine a Jewish-American engaging in this abhorrent tactic. How much lower can you sink?
Pointer: Mark Levin
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