This essay is closely related to yesterday’s post about the elderly defense lawyer who revealed in a memoir shortly before his death that the client he successfully defended against kidnapping charges in his most celebrated case was guilty. One commenter opined that it is unethical for a lawyer to defend a client whom the lawyer knows is guilty, which immediately reminded me to republish my explanation of this core element of legal ethics and the criminal justice from 2005. The commenter’s position is surprisingly common, even among law students. I’d bet that a majority of the American public is confused about the issue. That is more than a little scary, but it explains why, for example, the public was so blase about Derek Chauvin being convicted of murder under conditions that made fair trial virtually impossible. What follows is very slightly edited from the original version, which can be found here.
How can it be right for an attorney to defend in court an individual that he or she knows is guilty? The fact that so many Americans are perplexed by this after two centuries is an indictment of the legal profession, which has flunked its obligation to protect its role in protecting a crucial Constitutional right by making sure that it is understood by the pubic that right serves. About 20 years ago, then-Fox TV commentator Bill O’Reilly led a campaign to get California criminal lawyer Jeffrey Feldman disbarred because leaked plea bargaining sessions showed that he knew his client, child killer David Westerfield, was guilty of murder, even though Feldman was vigorously disputing his guilt in court. O’Reilly pronounced Feldman a liar. He was wrong, but his ignorance, in this matter at least, is excusable, but only because it so widespread.
To understand the criminal lawyer’s ethical responsibilities, begin with this: the Founders of the American republic believed that citizens in a fair and just society shouldn’t be imprisoned or punished just because the government decides they are guilty of something, whether it is murder, robbery, not paying taxes or, as with John Hancock and Samuel Adams, criticizing those in power. They wisely decided on a system that required the government to prove that an individual had committed a crime to the satisfaction of an unbiased jury. Not only that: they decided that a very high standard should be applied in determining legal guilt: “beyond a reasonable doubt,” or near certainty.
Why? Taking the cue from British legal scholar William Blackstone, who famously said that it was better to have ten criminals escape punishment than to have one innocent man imprisoned, uber-Founding Father Benjamin Franklin said that “ it is better one hundred guilty Persons should escape than that one innocent Person should suffer.” Achieving this ideal means keeping the government honest: no convictions based on false or planted evidence, unreliable or lying witnesses, or confessions extracted from the accused by torture, beatings, or other forms of duress even if the accused is, in fact guilty. All of that is essential for the system to work, if to work means “being fair and just.” If we permit the government to cheat in order to imprison a guilty individual, we have no way to stop it from cheating to imprison an innocent one. Indeed, it will be impossible to tell the difference.
So regardless of whether a criminal lawyer’s client is guilty of the crime he or she is being tried for or wrongly accused of committing, the defense attorney’s job doesn’t change. It is to make the prosecution prove its case with sound arguments, real evidence, and reliable testimony. In a sense, the real client of a defense attorney isn’t truly the criminal defendant at all but the integrity of democracy and the justice system. For example, O’Reilly was incensed that Feldman, while defending Westerfield, argued to the jury that the state’s evidence suggested that certain persons other than his client may have killed the victim. “That’s a lie!” Bill fumed. But it wasn’t a lie: Feldman’s argument was absolutely correct. The evidence in question didn’t rule out other suspects. The jury would be making its decision based on false reasoning if it took the prosecution’s word that the evidence only implicated Westerfield. Feldman was meeting his ethical duty to point out to the jury that the prosecution’s argument was not as conclusive as it claimed. Again, the lawyer’s job was to make the prosecution prove its case.
Feldman did his job, and the prosecution and jury did theirs: David Westerfield was convicted. But what about the equally guilty O.J. Simpson, who was, infamously, acquitted? If the late Johnny Cochran and the rest of O.J.’s legal team knew he was guilty, didn’t they knowingly perpetrate a terrible miscarriage of justice? Didn’t they willingly let a double murderer loose on the golf courses of Florida and California? How can that be ethical?
Of course, we don’t know if Simpson’s lawyers “knew” he was guilty, though there is evidence that some or all of them strongly suspected as much. Many defense attorneys don’t want to know, because knowing can make it harder for them to do their jobs. It can be difficult to point out flaws in the prosecution’s arguments if you are hoping that the prosecution puts on a slam dunk case and the homicidal monster sitting next to you gets locked up for good. Many defense lawyers set out to convince themselves of a defendant’s innocence, no matter how unlikely, because such a mindset helps them make sure that they won’t subconsciously do a sub-par job out of sympathy for the victims or revulsion for their client. Those who know their client is guilty have to keep reminding themselves what their duty is and why it’s so important.
But even assuming that the Simpson legal team was certain that O.J. hacked Nicole Simpson and Ron Brown to death, they had reason to sleep soundly on the night after the acquittal. They held up their end of the Constitutional directive. They ensured O.J. a fair trial, which every American from Ted Bundy and Jeffrey Dahmer to Michael Jackson and Martha Stewart to you and I, must have before the government takes away our freedom. In the O.J. Simpson case the prosecution was amateurish, the police were inept, the judge was unable to control the trial, and the jury simply didn’t have the ability to follow a lengthy trial that had too much evidence and too many witnesses. Perhaps most crucial of all, the case featured a defendant that the jurors thought they knew because he was a celebrity. Arguably every component of the Simpson trial except the defense performed badly. Some aspects of the trial might support arguments for reform, but the failings of the rest are not the fault or the responsibility of Simpson’s defense attorneys.
Criminal defense attorneys have an unimaginably difficult task, as stressful and emotionally challenging as that of a surgeon who must hold life in his hands. It doesn’t produce satisfaction or joy when defense attorneys see their guilty criminal clients go free, guaranteed by the Constitutional prohibition against “double jeopardy” never to have to suffer any punishment for terrible crimes. But unless defense attorneys do their jobs well enough that this can happen when the prosecution or jury don’t perform their jobs well, democracy dies. Individuals accused of crimes become helpless, completely dependent on the good faith and competence of police and prosecutors for their fate. The individual, guilty or guiltless, becomes powerless. The Founders’ dream is betrayed.
Many attorneys can’t handle the complex ethical balancing that criminal defense work requires. I left the field because I couldn’t. But they are not the villains of the American justice system; they are its ethics heroes. Their zeal in making sure that citizens lose their freedom only when there is strong evidence to justify it protects all of us, and we owe them our gratitude, and perhaps, some day, our lives.