On occasion someone has criticized me for representing a criminal defendant whom the community considers “undesirable” because of the crime that the defendant is accused of committing. I, too, want to live in a community where we do not fear being victims of crimes. But that desire is far outweighed by the fear of the community cruelly and unjustly destroying a life by tossing aside well-established principles on which this country was founded in pursuit of that crime-free utopia.
So, I make the choice to represent those whom the community has shunned. I do so because of my belief in the importance of professional representation, especially in criminal cases. This article explains why I believe so strongly in this principle.
Let’s start with a scenario: A community accuses a citizen of a horrible crime that the citizen did not commit. This is not hard to imagine. Communities make absolute judgments on far too little information passed from person to person. Out of the community forms an angry mob, absolutely certain in the righteousness of its judgment, to carry out swift and final vigilante justice. This scenario has happened many times in our country’s history. Sometimes, the mob was right in its judgment; and many times the mob was wrong, dead wrong.
Our country addresses this problem with the rule of law. If a citizen is accused of a crime, he is brought to trial where evidence is presented in an orderly fashion and a jury of the citizen’s peers decides his fate.
But in our scenario the community, in its zeal for security, requires the citizen to prove his innocence once he is accused. This may not be easy to do, especially if doing so requires proving that something did not happen. The risk is too high that the citizen will be wrongfully convicted. The community may be more secure from crime but will be less secure from itself.
In our country, we address this problem with the presumption of innocence. The prosecution must prove guilt, and in fact must prove it beyond a reasonable doubt. Yes, some of the guilty go free. But the chances of wrongfully convicting an innocent person is much lower. Our society accepts this trade-off.
As our scenario progresses, the community accepts the presumption of innocence as a necessary evil. But it does not want to make it easy on our poor, innocent citizen to get away with the crime it is sure he has committed. So, it attempts to deprive the citizen of professional representation. Surely an attorney who represents the citizen knows that the citizen is guilty. So that attorney is harming the community by doing what the attorney can do to avoid a conviction. The community shames the attorney in an effort to achieve justice.
Our system of justice is called the “adversarial system.” It achieves accuracy by having three indispensable parts: an advocate for one position (e.g. prosecution), an advocate for the opposite position (e.g. defense), and a neutral decision-maker (judge or jury). If either advocate is not effective at advocating for that side’s position, even the most well-meaning neutral decision-makers will have difficulty making the right decision, and the accuracy of the system goes down.
Our legal system, especially the criminal system, is complex. Lawyers exist because they are often needed to navigate this complexity. A criminal defendant who does not have an effective lawyer is at a severe disadvantage. Our legal system requires effective advocacy for the criminal defendant if we are to avoid wrongful convictions.
Why is this a problem in the case where the defendant is guilty? Couldn’t the lawyer simply ascertain the guilt of the client before deciding whether to represent him? After all, says the community, the citizen is clearly guilty.
The process of vetting clients to avoid representing the guilty would usurp the accurate, adversarial legal system that we have so carefully set up. In deciding whether to represent a defendant, the lawyer has no way of acting as a neutral decision-maker, who should be listening to advocacy on both sides of the issue. The lawyer would be determining the client’s guilt on his own, a much less accurate process. Further, there can be no presumption of innocence in the lawyer’s deliberations about the guilt of the potential client. To obtain representation, the defendant would have to convince the attorney of his innocence. Even further, the potential client may not be honest with the lawyer out of fear that this honesty will cause the lawyer to not take his case. Remember that wrongful criminal charges (and wrongful community judgments) are almost always based on some evidence of criminal conduct. Consequently, lawyers who do take clients may be hamstrung with partial information.
All of these problems have the same result: a legal system broken by the lack of effective advocacy for the citizen. The citizen unable to obtain representation because of the inaccurate judgment of the attorneys has little chance of an acquittal in the formal, “accurate,” legal system. And, a lawyer deciding to represent a defendant may be ineffective because the client does not tell the lawyer all that the lawyer needs to know. The fate of our poor, innocent citizen is sealed long before his formal trial.
Wise people in our nation’s history have realized that the only solution is to afford criminal defendants effective counsel no matter how guilty they appear. In San Juan County, there are few attorneys who do criminal law. If I were to choose clients based on my sense of their guilt, I would be creating the potential for a wrongful conviction. Consequently, I believe in the general principle that a criminal defendant should be able to choose his or her attorney. I am willing to suffer the negative judgment of some in the community who do not understand the importance of this principle. I am comforted by the fact that they too would be able to obtain effective legal counsel if they were to be wrongfully accused of committing a crime.
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