How Can You Represent Those People?

A. Smith, M. Freedman, A. Smith, M. Freedman

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137311955
• Topic: Scienze sociali
• Subtopic: Criminologia

How Can You Represent Those People? is the first-ever collection of essays offering a response to the 'Cocktail Party Question' asked of every criminal lawyer. A must-read for anyone interested in race, poverty, crime, punishment, and what makes lawyers tick.

1

“DEFENDING THE GUILTY” AFTER 30 YEARS

Barbara Babcock

In 1983, I published “Defending the Guilty,”¹ a piece that lives on in citations and classrooms. Perhaps it’s the provocative title, or the story of Geraldine, the essential client, that has made the article popular. For this volume, I’ve spruced up the diction and added some reflections from the life of Clara Foltz, the founder of the public defender movement. The chapter also draws on my memoir-in-progress, Recollections of a Woman Lawyer.

I always wanted to be a criminal defense lawyer, which was even more unusual for a woman in the early 1960s than wanting to be a lawyer at all. Reflecting back now, I have no insights on the source of my ambition. Maybe it sprang from my Christian upbringing, my innate sympathy for the underdog, my love for the Robin Hood stories. Nothing really adds up. Criminal defense was a rare goal for men too at the time, especially at elite schools likeYale. Along with this set ambition, I also had a fixed belief that lawyers had a high moral duty to defend—the more heinous the crime, the greater the duty.

In his book, One Man’s Freedom, published while I was in law school, the famous defense lawyer Edward Bennett Williams confirmed my instincts when he wrote of taking on “difficult cases for unpopular clients . . . because of the unwritten law that I might not refuse.”²

John Ely, a classmate who went on to become a distinguished law professor, disputed the “unwritten law.” He thought that only if the lawyer was the last one on earth was he obligated to represent the client he disliked or whose cause he disapproved. In the manner of law students everywhere, we argued heatedly. Fifty years later, I can still remember walking along the winter streets of New Haven, furious at John for claiming that he might refuse to defend some dreadful criminal. Who did he think he was? Defense of the defenseless, the guilty, and even the indefensible was already my religion.³

Given my passion about defending, it seems fortuitous that Gideon v. Wainwright⁴ should come down the year I graduated from law school. In one of its most far-reaching and important decisions, the Warren Court held that lawyers were necessities in criminal cases and that due process required an attorney even for the accused who could not pay. The most salient years of my career would be spent at the Public Defender Service, established in Washington, DC, to fulfill the mandate of Gideon.

My years at “the agency,” as we always called it—from 1966 to 1972—were exciting and happy, including the four years I served as director. Paradoxically, they were also the most frazzled and anxious time of my life. Often I felt alone, standing between the client and powerful pneumatic forces that threatened to sweep us both away. The work was endless because there was always something more that might be done. Filing a motion, finding a witness, or stopping by the jail for a chat on a Sunday afternoon could mean the difference between victory or defeat, between freedom and prison.

A few years ago, I was remembering (in an oral history) what it felt like to be a public defender:

I was always tired, and driven, and in a rage (that I was repressing) because it seemed that no one in power could see the injustice that was happening and the necessity of providing real defense lawyers and doing it right away . . . But the thing was it was fun, there wasn’t that rigid work/play distinction. I loved what I was doing, even though I was just tremendously wrought up all the time when I look back on it.⁵

One of the daily stressors was the constant question: How Can You Defend Someone You Know Is Guilty? Everyone asks it—benign old aunts, eager young students, the gardener, the grocery store clerk, and lately even the oncologist. Today, 40 years after I last appeared in court, interviewers still bring up the subject. Every defense lawyer develops an answer to keep at the ready for the inevitable, existential query. I wrote Defending the Guilty, with its sardonic title, on the twentieth anniversary of Gideon, to offer a list of responses I had used or heard.

The Garbage Collector’s Answer. Yes, it is dirty work, but someone must do it. We cannot have a functioning adversary system without partisans for both sides. A defense lawyer keeps the system clean by holding the police and the prosecutors to high standards. True, his methods are often unrefined and he may use rough tactics and searing cross-examination, but essentially his work is the same as that of any skilled trial lawyer, civil or criminal, who arranges, argues, and even orients the facts with only the client’s interests in mind.

The Constitutionalist’s Answer. It is noble work. The Right to Counsel is here invoked—to the best effect still by Anthony Lewis, speaking on the “dream of Gideon” of “a vast, diverse country in which every [person] charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment.”⁶ Or as Clara Foltz, the founder of the public defender, put it, speaking of the duty of the government to provide counsel for the indigent, 70 years before Gideon: “Let the criminal courts be [reorganized] upon a basis of exact, equal and free justice.”⁷

The Civil Libertarian’s Answer. The criminally accused are the representatives of us all. When their rights are eroded, the camel’s nose is under and the tent may collapse on anyone. In protecting the constitutional rights of criminal defendants, we are only protecting ourselves.

The Legal Positivist’s Answer. Truth cannot be known. Facts are indeterminate, contingent, and, in criminal cases, often evanescent. A finding of guilt is not necessarily the truth, but instead is a legal conclusion arrived at after the role of the defense lawyer has been fully played.

The sophist would add that it is not the duty of the defense lawyer to act as fact finder. Were she to handle a case according to her own assessment of guilt or innocence, she would be in the role of judge rather than advocate.

The Philosopher’s Answer. There is a difference between legal and moral guilt; the defense lawyer should not let her apprehension of moral guilt interfere with the analysis of legal guilt. The usual example is that of the person accused of murder who can respond successfully with a claim of self-defense. The accused may feel morally guilty but not be legally culpable. Foltz would add that all the accused are presumed innocent by sacred principles of law and should be treated accordingly until a final verdict or plea.

The Oddsmaker’s Answer. It is better that ten guilty people go free than that one innocent is convicted. The risk of acquitting the guilty is the price of our societal concern for sparing the innocent.

The Political Activist’s Answer. Most people who commit crimes are themselves the victims of injustice. This statement is true generally when those accused are oppressed minorities. It is also often true in the immediate case because the defendant has been battered and mistreated in the process of arrest and investigation. Moreover, the conditions of imprisonment may impose violence worse than that inflicted on the victim. A lawyer performs good work when he helps to prevent the imprisonment of the poor, the outcast, and minorities in shameful conditions.

The Social Worker’s Answer. This reason is closely akin to the political activist’s reason, but the emphasis is different. Those accused of crime, as the most visible representatives of the disadvantaged underclass in America, will actually be helped by having a defender, regardless of the actual outcome of their cases. Being treated as a real person in our society (almost by definition, one who has a lawyer is a real person) and accorded the full panoply of rights and the measure of concern afforded by a lawyer can promote rehabilitation. Because the accused comes from a community, the beneficial effect of giving him his due will spread to his friends and relatives, decreasing their anger and alienation.

The Humanitarian’s Answer: The criminally accused are men and women in great need, and lawyers should come to their aid. That great icon of the criminal defense bar, Clarence Darrow, wrote in his autobiography:

Strange as it may seem, I grew to like to defend men and women charged with crime. It soon came to be something more than the winning or losing of a case. I sought to learn why one goes one way and another takes an entirely different road . . . I was dealing with life, with its hopes and fears, its aspirations and despairs. With me it was going to the foundation of motive and conduct and adjustments for human beings, instead of blindly talking of hatred and vengeance, and that subtle, indefinable quality that men call “justice,” and of which nothing really is known.⁸

The Egotist’s Answer. Defending criminal cases is more interesting than the routine and repetitive work done by most lawyers, even those engaged in what passes for litigation in civil practice. The heated facts of crime provide voyeuristic excitement. Actual court appearances, even jury trials, come earlier and more often in one’s career than can be expected in any other area of law. And winning, ah winning, has great significance because the cards are stacked for the prosecutor. To win as an underdog, and to win when the victory is clear—there is no appeal from a “Not Guilty” verdict—is sweet.

My Answer. Though many of the answers overlap, many do not. For instance, one can be a successful defender without a drop of social worker in her veins, or love the work without any particular attachment to the development of the law. My point is only that, whatever the rationale, the defender, unlike most professionals, must have one. My own reason for finding criminal defense work rewarding and important is an amalgam in roughly equal parts of the social worker’s, the humanitarian’s, and the egotist’s reason and is encapsulated in a story.

I once represented a woman, I will call her Geraldine, who was accused under a draconian federal drug law of her third offense for possessing heroin. The first conviction carried a mandatory sentence of five years with no possibility of probation or parole. The second conviction carried a penalty of ten years with no probation and no parole. The third conviction carried a sentence of twenty years on the same terms. Geraldine was 42 years old, black, poor, and uneducated. During the few years of her adult life when not incarcerated by the state, she had been imprisoned by heroin addiction of the most awful sort.

But even for one as bereft as Geraldine, the general practice was to allow a guilty plea to a local drug charge, which did not carry the harsh mandatory penalties. In this case, however, the prosecutor refused the usual plea. Casting about for a defense, I sent her for a mental examination. The doctors at the public hospital reported that Geraldine had a mental disease: inadequate personality. When I inquired about the symptoms of this illness, one said: “Well, she is just the most inadequate person I’ve ever seen.” But there it was—at least a defense—a disease or defect listed in the Diagnostic and Statistical Manual of that day.

At the trial I was fairly choking with rage and righteousness. I tried to paint a picture of the poverty and hopelessness of her life through lay witnesses and the doctors (who were a little on the inadequate side themselves). The prosecutor and I almost came to physical blows—the angriest I have ever been in court. Geraldine observed the seven days of trial with only mild interest, but when after many hours of deliberation the jury returned a verdict of “Not Guilty by Reason of Insanity,” she burst into tears. Throwing her arms around me, she said: “I’m so happy for you.”

Embodied in the Geraldine story, which has many other aspects but which is close to true as I have written it, are my answers to the question: “How can you defend someone you know is guilty?” By direct application of my skills, I saved a woman from spending the rest of her adult life in prison. In constructing her defense, I became intimate with a life as different from my own as could be imagined, and I learned from that experience. In ways that are not measurable, I think that Geraldine’s frie...