As I sit here waiting for the results to come in on the recall of Chesa Boudin, I’ve been thinking about how he got to where he is. I think, at it’s root, the public has an inaccurate impression of criminal defense attorneys and what they do. This is particularly true when it comes to public defenders. They are viewed as heroic figures, and while there certainly are some heroic public defenders, for the most part, they are no different than the rest of the criminal defense bar. And this is not a heroic group, not by any stretch of the imagination. As the Supreme Court put it in United States v. Wade (1967) 388 U.S. 218:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.
Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.
Professor Susan Estrich picked up on this idea and ran with it.
Look around the courtroom in a criminal trial and almost everyone is bound by one oath or another to tell the truth: the witnesses, of course; the jury and the judge, bound to find the truth; the prosecutor, whose lying can lead to reversal in the appeals court and at the polls; even members of the press, who can be sued for libel. The one person not pledged to tell the truth, seek the truth, let alone be bound by it, is the defense attorney. For me, the only question that matters in the O.J. Simpson case is whether he did it. Everything turns on that. For Robert L. Shapiro and Johnnie L. Cochran Jr., Simpson’s lawyers, nothing turns on it. Their job is to get Simpson off, innocent or guilty. If he’s innocent, that means advocating the truth. If he’s guilty, it means attacking it.
Criminal defense lawyers are not supposed to put witnesses on the stand who they know will commit perjury; of course, many criminal defense lawyers claim they’re incapable of ever really knowing anything. They can’t hide the murder weapon in their desk drawers, though they’re not obligated to pick it up. Other than that, they’re pretty free to obstruct the search for truth in any way they can, within the rules of evidence. Witnesses are fair game–even if they’re telling the truth. So is every piece of evidence, and every scientific test, even if it was accurately performed. You can impeach the person who found the evidence, question whether it was securely maintained, debate the accuracy of the test, undermine the reliability of the lab–even if you know, all the time, that the witness is telling the truth about where he found the evidence, it is your client’s hat and the test turned up the right answer. You have an absolute right to libel anyone in the courtroom; Det. Mark Fuhrman’s suit against the Simpson legal team is premised on what they said outside of court, in the public “trial.”
The explanation academics offer for the “different mission” of criminal lawyers that allows them such latitude with the truth is the adversary system of justice. The way we find truth, and protect the innocent, in an adversary system of justice is by putting the government to its proof, by arguing each point, each fact. Certainly, no one questions the right of an attorney to attack the credibility of witnesses who are lying, or attack the validity of tests he believes are inaccurate. No one doubts his right to argue to the jury that lies are lies, or that facts are true. No one, in short, is seeking to limit the advocacy of an attorney attacking a prosecution case that is untrue and defending an innocent man.
The harder question is why he is allowed to do these things when their purpose is to obfuscate the truth, to create doubt–and he knows that, or would if he allowed himself to “know” anything. Does every man deserve a defense, even if the only ones available are false defenses? How does it make truth-finding better when a lawyer undermines a truthful witness? If the rape victim is telling the truth, do you get to destroy her anyway? How does it help the jury do its job if you tell them that in is out or up is down or lies are truth.
Nor is it an answer that defense lawyers can’t “know” anything, that they’re not truth finders, and shouldn’t be. That’s the answer you most often hear from practicing lawyers about why any system limiting their advocacy makes no sense. But the ethics codes all reject that: It’s well-established that a defense lawyer can’t put a witness on the stand if he knows that witness will commit perjury–a line that turns precisely on a lawyer’s ability to know the difference between truth and lies. “Don’t ask, don’t tell” may be the posture lawyers take about their client’s guilt; but the same lawyers who try to persuade you, for ethical purposes, that they know nothing will turn around and brag they never try a case unless they know everything, and they can tell when someone is lying. Proving and disproving facts, persuading jurors of truth or falsity, is what lawyers do. We have a whole system of rules for doing it. It doesn’t follow that lawyers are incapable of applying those rules for themselves.
These are not just questions for lawyers to resolve in codes of ethics. More is at stake than just the relationship between a lawyer and his client. This is also about how the criminal-justice system works. It is certainly bound to come up as Americans everywhere tune in for their next installment of Criminal Justice 101.
People who are willing to help a guilty defendant are not always the kinds of people that should be elected to a position of public trust. I know many fine defense attorneys that I trust. I know many excellent judges who are former defense attorneys. There are exceptions to every rule. But the rule for criminal defense attorneys should not be hero worship or hagiography. It should be caution, and even suspicion.
That’s a lesson that San Francisco learned the hard way.