July 27, 2013

Defending The Monster In Court

This is a matter that has long fascinated me -- and I got an answer on the matter during my seminary days. I'll explain later.

I have been a criminal defense lawyer for more than 30 years, first as a public defender and now as a law professor running a criminal defense clinic. My clients have included a young man who gunned down his neighbor in front of her 5-year-old daughter while trying to steal her car, a man who beat a young woman to death for failing to alert drug associates that police were coming and a woman who smothered her baby for no apparent reason. These are the kinds of cases that prompt people to ask: “How can you represent those people?” All criminal defense lawyers are asked this; it’s such a part of the criminal defense experience that it’s simply known as “the question.”

Most of us have a repertoire of stock replies about how the system can’t work without good lawyers on both sides, or the harshness of punishment, or the excessive number of people — especially minorities — locked up in this country. Capital defenders such as Tsarnaev lawyer Judy Clarke tend to cite their opposition to the death penalty.

But our motivations are usually personal and sometimes difficult to articulate. I often say I was inspired by “To Kill a Mockingbird.” There is no more compelling figure than Atticus Finch defending a wrongly accused poor black man. Innocence, though, is not a chief driver for me. To the contrary, I often call my life’s work “the guilty project.” Criminal defense is, for the most part, defending the factually guilty — people who have done something wrong, though maybe not exactly what is alleged.

And that is a reality. Lawyers have their niche. Some are into tax law, others are civil litigators. And then there are those drawn to the defense bar who recognize that the system does not work if a defendant cannot get anyone to mount a defense.

When I was a kid, I had the chance to meet F. Lee Bailey. I admired him -- to tell the truth, I wanted to be him and had ever since I had first heard about the Sam Shepherd case. But what I didn't realize at the time was that most defendants -- even those who insist upon going to trial while proclaiming their innocence -- are guilty and that the job of a defense attorney goes beyond keeping them from being found guilty.

Fast forward a dozen years or so to my days in the seminary and I got a better understanding of why defense attorneys do what they do. About an hour from our campus a heinous series of murders had taken place at the hands of Jeffrey Dahmer. One of the victims even lived in the same apartment building and on the same hall as the girl I dated in high school. And as the trial began, we first year theology students discovered that the defense attorney in the case was none other than the brother of our moral theology professor.

As one might imagine, we had questions about the case and the trial and mine was a version of "the question" -- "Father, how can your brother morally defend a man who is so clearly guilty and seek to have him acquitted if he can?" The wily old Jesuit grinned at me and gave me an answer that resonates with me even now, over twenty years later -- "If you asked my brother, he would tell you two things. First he would say that he feels an obligation to make sure that even a client who is so obviously guilty of a crime gets due process and that at every turn their rights are upheld and protected. He would then tell you that in this particular case, where there is a real chance that his client might get the death penalty, that he first and foremost is seeking to preserve the life of a fellow human being. I would suggest to you that these constitute the highly moral desire to see to it that justice is done even for those against whom we would on an emotional level prefer receive vengeance instead."

I thought about that a lot recently, when I went down to one of the local criminal courtrooms to be a character witness for a former student who was charged with and pled guilty to a crime which was, at the time it took place, somewhat notorious in the area. We sat and talked for about an hour before the hearing while waiting for his lawyer to arrive. At one point this young man looked at me and tearfully confessed his deep sense of shame and remorse for the harm he had done to the victims and his own family. He even conceded that nobody would have blinked an eye if he or one of the other young men involved had been shot and killed like Trayvon Martin had only a few days before they committed their crime. Then I watched as his defense attorney simply went through the motions while the ADA sought to make an example out of this young man. Then I watched as the judge sentenced him to 20 years in prison despite a pre-sentencing report that recommended probation and 40 letters seeking mercy written by community members (including one from a law enforcement officer who was subpoenaed as a prosecution witness) -- and I could not help but wish that there had been someone who would have been the sort of vigorous advocate he really needed.

So yes, I have great respect for defense attorneys who take on the cases of monsters like Dahmer, terrorists like Tsarnaev, or unpopular defendants like George Zimmerman, even if I don't always agree with their tactics and their goals. And to be honest, I wish we had more who took their cases as seriously as those lawyers. If we did, maybe I wouldn't be planning a trip down to the county jail for one last visit with my former student -- who will always be close to my heart -- before he is transferred to a state prison.

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NAME: Greg
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