I stumbled across this question on Reddit. There were a bunch of interesting answers. Most of them are very practical. But something different occurred to me. Why is this lawyer helping this defendant at all?
Maybe this person is a public defender who has to represent the client whether they like it or not; they have no choice in the matter. That’s the most likely answer. But I’d like to make two assumptions. First, assume the client is guilty. Otherwise, why would the lawyer mention that no matter what she does in court they will lose? Second, assume that the lawyer has a choice. She can represent this defendant or dump him. Does she have an ethical duty not to help a guilty client get away with something?
I think that regular people intuitively understand that we should not do bad things ourselves nor should we help others do bad things. People also understand that the job of criminal defense attorney involves helping people get away with bad things.
Criminal defense lawyers often respond that their job is to make sure the system treats their client fairly. Or they will say that their job is to protect the constitutional rights of their clients against the government. And those are fine slogans, but this Reddit post illustrates an uncomfortable truth about the job. Most of the time, in fact, virtually all of the time, the client is guilty and is receiving fair treatment. In those situations, what is the role of the criminal defense lawyer?
If you ask the criminal defendant, the role of the lawyer is to get the defendant off, or at least get him the lightest possible punishment. When plea bargaining fails, and a case goes to trial, the role of the defense lawyer is to win the trial. And that means secure a verdict of not guilty, or at least a hung jury. Here’s an example from the Reddit comments:
There are a lot of interesting lines to parse in this candid post. Two lines really struck me. First, the “whole idea is to get the best outcome that is possible in the situation.” This is different than “defend the constitution” or “act as a check on the government.” And although it’s not as noble, I think it is a more accurate description of the “whole idea” of criminal defense. Second, the commenter says, “if he wants to go to trial, you’re ready to do so and will fight hard for him.” Here again we have straight talk about how the system works. The lawyer will try hard to get the client off if that’s what the client wants him to do. Notice that he didn’t say, “I will withdraw if you insist on a trial because I cannot represent a guilty defendant.” He didn’t say, “you should admit what you did and take responsibility for it, including whatever punishment the legislature has prescribed.” I know this will sound naive to some readers. But it’s the tension between the client and the lawyer’s ethics that I find interesting.
There may be a rare defense attorney who never represents a guilty client. But that person is one in a million. I have never, in my entire career, charged someone with a crime when I’m not sure that they did it, and that I can prove it. Neither has anyone I know. The court system today is full of guilty people either trying to get a low offer or trying to trick a jury. Here’s another candid comment from the same post:
Maybe it’s naive, but I don’t think it’s right to go to trial, launch a hail mary, and play for a mistrial. This dynamic is well illustrated by the Reddit post. It seems like the person posting is a defense lawyer. It seems like the defendant is guilty. I’m guessing the defendant is asking the lawyer if he can get the charges dropped or reduced because of systemic racism, or something. It seems like the lawyer is saying no. The lawyer is recommending that the defendant take a 10 year offer. This makes sense because of the defendant’s record and because of the People’s ability to prove the case. Nevertheless, the defendant won’t go for it. He wants to have a trial. And to put a fine point on it, in that trial, he wants his lawyer to get him off. Even though he is guilty.
What about systemic racism?
No one can really agree what system racism is. Nevertheless, many loud voices have recently claimed that there is system racism in our justice system.
If we keep telling people that systemic racism exists, they will continue to blame it, rather than themselves, for their criminal conduct. This undermines the whole point of the system, which is to educate criminal defendants. Specifically, it is to teach them that criminal conduct will not benefit them. How can they learn this lesson if they believe that systemic racism, rather than their own choices, are responsible for crime? Here’s another comment from the same post:
That’s the sinister undertone to the Reddit post. Whether systemic racism exists or not – I think it doesn’t – it works as an excuse. It undermines the fundamental role of the justice system: holding someone accountable. Because everyone understands what this Reddit defendant understands. If systemic racism is to blame, you aren’t to blame.
I have heard some prosecutors at my office defend against the systemic racism narrative in safe and PC language. But I have also heard prosecutors shout it from the rooftops that our system is irredeemably racist, including a recent local DA candidate. I have seen some of my classmates shift career paths from State to Public Defender literally days after the killing of George Floyd. I can expect prosecutors to be weary of systemic racism, but I can only hope that the next generation of Public Defenders, all of which will have entered the profession post-Floyd, will at least be suspicious of the narrative and aware that, if it is true, they will cease to be attorneys and become activists. The whole point of the adversarial system is to discover truth about “on the day in question,” so what happens when we believe that the truth is irrelevant?
Thank you for the refreshing post.
– 3L in the SE United States, ADA Intern, Aspiring Prosecutor.