For the sub-class of people known as criminal defense attorneys, these are two unescapable questions. I'm still a baby lawyer, six months short of graduating and probably a year short of actually representing a person in court. What this means is that I've encountered this question not from a person looking to learn something about what's driven me to hang with accused criminals for years; rather, I'm asked this question at the front door. In job and internship interviews, the central inquiry typically finds its way into the conversation sometime after the opening pleasantries and sometime before they ask me why I spent my first summer working for a baseball team.
"How can you defend those people? How can you defend someone you know is guilty?"
Though these individual questions are often paired, and though the inquiring party typically thinks they mean the same thing, my first thought is to separate the two. Because in my mind, the two questions ask two very distinct things and demand two very distinct answers.
For the longest time, my answers to these questions have been stock-quality. Nothing was technically wrong with my answers, and they've usually been what the asker has wanted to hear. I've failed many times, though, to communicate the core concepts that drive me to defend the accused.
My situation is somewhat different from the average person on the criminal law track. My passion goes beyond the simple representation of people charges with crimes. Instead, I'm driven by a passion for the problem of inadequate indigent defense. Across much of the country, and especially in the deep South where I've spent most of my life, the problem of inequality within the justice system is largely endemic. Too often, these states defile decent notions of justice by fast-tracking the poor through the legal system without proper representation. It's a curious policy determination - decisions, made largely by ego-driven and self-important lawyer-types, which often fail to acknowledge the importance and necessity of quality representation. This leads to the obvious conclusion - these policy makers understand the importance of a good lawyer for every client; for the poor, though, they just don't care.
The result should be predictable for anyone who's paying attention. In states across the South, many court-appointed attorneys answer the "how?" question with a series of unsavory answers. How do they represent these people? If these people answered honestly, they'd tell you that they don't. Some, like Joe Frank Cannon of Texas lore, sleep through their cases, even as the district attorney argues that the defendant should be given the death penalty because his homosexuality would make prison something closer to a vacation than a punishment. Others show up to court drunk or high. Defendants in Texas have filed actual appeals to argue whether a sleeping lawyer was legally distinguishable from a lawyer trying a case under the influence of cocaine or hard whiskey. In other Texas appeals, the issue at hand was whether the defendant's attorney slept through any of the important parts of the case. When a man's life is on the line, it is difficult to envision a part of the the trial that might be deemed unimportant.
These examples come from capital cases, too, where the end result might include a man strapped to a gurney. The representation is often no better in run-of-the-mill cases, where court-appointed attorneys often meet their clients for only long enough to advise those clients to take whatever paltry deal the district attorney is offering that day. The attorneys are only a part of the problem. There's no denying that it takes a special kind of human torpor to sleep through proceedings that might mean death. The system itself empowers these listless attorneys through a woeful commitment to funding. In some states across the South, court-appointed attorneys are paid less per hour than a large corporate firm's paralegal. Worse still are the hour limits - many states limit the number of hours that an attorney can bill to the state. Imagine a lawyer given only 20 hours to investigate a case, interview witnesses, write his briefs, and otherwise prepare for trial. Now imagine that you are the defendant, and the state is seeking the death penalty in your case.
These systems promote poor lawyering and they lead to waste. Even the most skilled attorney could not prepare an adequate defense under the current constraints. This means that the expected performance from these attorneys is so low that it might incentivize attorneys to spend even less than their allotted hours on the case. An uncommitted laggard might reason, "If I'm going to lose anyway, and they are holding me to such a low standard, then what difference will an extra fifteen hours make?"
Lately things have been changing though the changes aren't happening quickly enough. More states and counties have established public defender's offices, a more expensive response that produces better results for indigent clients. These jurisdictions have finally discovered what others have not - that without the funding and support of the state to offer the defense some of the opportunities afforded to the prosecution (investigative services and expert witnesses, for two), an indigent person has little chance at trial. As civil rights attorney Bryan Stevenson once said, "In many places in America, it is better to be rich and guilty than poor and innocent."
The problems in indigent defense represent a real constitutional crisis. The guarantee of a fair trial includes, implicitly, the guarantee of counsel. In its holding in Gideon v. Wainwright, a unanimous Supreme Court held that states must provide counsel to those who cannot afford it. They left much power to the states to determine how they would provide that counsel, and took steps to destroy the right to adequate counsel in later rulings. To understand the problem, one must understand Strickland, a Supreme Court case that defined the obstacles faced by a person asserting an ineffective assistance of counsel claim. Without venturing into the murky legal details, I will just say that the Court established a barrier so high that even egregious examples will be deemed effective. Under Strickland, a lawyer who raised zero objections during an entire trial was found not ineffective. The same was true for an attorney who began his closing argument by noting, "In light of the overwhelming evidence against my client, I have been trying to find..."
So how do I represent those people? This question asks me to tell you why I disagree with the judgment of those states who have determined that upholding sixth amendment protections is not worth the effort. I previously quoted Bryan Stevenson, and I believe his words ring truer than most:
"I believe that each person is more than the worst thing they have ever done."
We are quick to slap labels onto people accused or convicted of crimes. Some are mundane and purely descriptive - thief, murderer, fraudster, drunk driver - while others are more troublesome - criminal or animal. Our collective mindset sees sees the criminal as a sub-class of human or in other words, a status. It's more aptly just a behavioral label. These are human beings who have made mistakes. In some cases, they are human beings who have made horrible mistakes and those people must bear responsibility. But there are reasons why people make mistakes. Many were afflicted with obscene levels of hope-destroying poverty. Many others were beaten or abused in their childhood. Most come from broken homes. A large percentage have some combination of these issues. It is an ugly reality that's often ignored by those who want to create a convenient criminal sub-class in their own minds. The idea that criminals might have been law-abiding citizens under different circumstances is scary because it provides for a collective blame mechanism. If we could have intervened, and we didn't, then we are in many ways blameworthy for the very crimes we condemn.
I defend "those people" for the same reason I defend the rights of the poor and disenfranchised in other ideological pursuits. Mostly it's because they are the systematically disenfranchised who society rarely cares about until their crimes bring them out of the shadows and into the light. While I'll also spend my time fighting for policies that help these individuals avoid a scenario where they ever need someone like me, I can't watch idly while some court-appointed attorney employs a snooze and lose strategy.
To me, the more interesting question is the second - how do you defend someone you know is guilty? As I mentioned before, I believe that most people who present this two-punch combo mean roughly the same thing with every question and that, unfortunately, confirms my suspicions about the realities of our "innocent until proven guilty" maxim. But these questions are fundamentally different. Not every one of "those people" did it. So how do you rationalize defending a person who you know "did it?"
The answer is at odds with much of the legal writing that I've studied on the topic. Many writers throw around the word "guilty" in a sense that I deem inappropriate. Richard Posner, one of the smarter federal judges on the appeals circuit even argued that under a more dedicated system of indigent defense, more "guilty" defendants might be found not guilty. Though I respect Posner's reasoning on economics and even statutory interpretation, I find the implications of his statement troubling.
The term guilty has a specific legal meaning. Even more so, the phrase "the jury finds the defendant guilty" has its own power. Implicit in our system are certain policy judgments. We believe that it is only appropriate to punish conduct when that conduct can be proved beyond a reasonable doubt in a fair, adversarial trial. There is a reason why the jury does not return a verdict of "He Did It!" Just doing it is not enough. A person must commit the act with the appropriate mindset. And unless the state can prove, through the medium of a fair trial, that the defendant possessed all of the relevant elements, there is no guilt, even if the person "did it." This system is in place for a number of reasons. Specifically, it's designed as a limit on the police power of the state and as a safeguard for those people who might be wrongfully accused. In a system such as ours, which relies so heavily on unreliable evidence and human judgment, these safeguards are more than necessary.
When someone asks me how I defend someone who I know is guilty, I argue that their scenario is largely impossible. Because without a fair trial that provides the defendant with a conscious, resource-backed, and motivated lawyer, there is no legal guilt. Without the commitment of the state to protecting the sixth amendment right to a fair trial, not even the jury findings of guilt hold any legitimate meaning. Without the effective indigent defender, neither side can engage in a process that rises to the levels of justice that our society believes it has. Unfortunately for too many, today's system is one designed so that the poor are marginalized from the beginning of their lives to the often tragic end.