Kent noted in the preceding entry that he does not join with those who bash "defense lawyers as a group. For the most part, they are responsible professionals who perform an important function in our system."
I agree with that, but there is more to say, sufficiently so that I think it's worth a separate entry.
Out the outset, I want to note that, to an extent, Kent has understated the case. In some instances, defense lawyers are not merely responsible but heroic. One of the most obvious recent examples was the execrable Duke lacrosse case, in which prosecutor Mike Nifong brought felony rape charges against three white lacrosse players knowing or having reason to know that the whole "rape" was a fabrication. He brought the charges for one reason only, to wit, that he was in a close and contested primary campaign in heavily black Durham, NC, and wanted to win racial brownie points with the Democratic electorate. Risking the venomous wrath of the Duke PC community, which is most of the campus, the players' defense counsel showed that the prosecution was a hoax. This is a shining example of criminal defense as a national treasure.
Nor is it a lone example. The defense bar at its best can be a sentinel against corrupt, factually baseless and/or politically rigged or motivated prosecutions. Unfortunately, such instances are not representative, as I shall now attempt to explain.
The key to understanding the morality of typical criminal defense work is something normally considered so far outside conventional thinking that it is all but verboten to talk about it.
The unmentionable key is whether you're representing a guilty man or an innocent one. And I do not intend here to be doing any fancy dance about gradations of culpability or anything else taken from the usual sources of manufactured confusion. For purposes of this discussion, a "guilty" person is an adult of sound mind who did it. An "innocent" person is someone who didn't do it and wasn't in on it.
The problem with our profession's current way of thinking is that it pointedly draws no distinction between representing the guilty and representing the innocent. When you go to law school, this is one of the first things you're taught. But to me, this is like going to military school, then not caring whether you fight as a soldier for your country or as a mercenary. Such breathtaking indifference would, in any other context, be seen as bizarre if not crazy. But in contemporary legal ethics, it's de rigueur; indeed, it's a point of pride. Whether the client belted Granny over the head with a tire iron to get her purse, or whether he did no such thing, is irrelevant. You're expected to extend your best efforts to get him off regardless. If he did it, and is a good bet to do it again if released, this is no concern of yours. Granny gets to worry about that.
The central problem with defense work is that the typical client is guilty and his lawyer almost always knows it from the getgo. This does not dissuade him from pulling out all the stops to try to bamboozle the judge or jury into putting Mr. Nicey back on the street, or, failing that, either to escape punishment altogether or vastly dilute it. This is accomplished by everything from filing bushels of procedural motions ranging from meritless to absurd, to presenting the substantive case in a way designed to be as misleading as possible.
In a way, this only makes sense: Since the client in the routine case is factually guilty, of course to be successfully misleading is the Holy Grail of defense work. The alternative is to see the case presented straightforwardly, which is the quick route to jail.
So it makes sense. But does it, really?
Under professional ethics as currently conceived, yes, it does. Defense counsel's single-minded obligation is to the client. If the client is guilty, and counsel nonetheless succeeds in getting him off, this is not considered a problem. Indeed it's considered a triumph.
It is not a triumph for the truth, however. It is unlikely to be considered a triumph by the client's victim, and still less by his next victim. The recidivism rate is not zero, and one would think it is particularly high among criminals who know they've already snookered the system. If defense counsel ever devotes a moment's thought to what the client is planning for his next trick if the defense prevails, I never heard of it. Certainly the canons do not require it; by their client-uber-alles outlook, they in fact discourage it.
Therein lies my problem with defense work.
We tell our kids that honesty is a virtue in its own right, and that misbehavior deserves punishment. If we believe that, then typical defense work representing guilty and often dangerous people entails a moral disconnect which, while accepted by the canons, is actually borderline schizophrenic. What we've created is an entire segment of the legal profession where deceit abounds, future dangerousness is not even an afterthought, and no one cares. Sometimes the deceit is hardcore (perjury, and in extreme cases witness murder); more often it's softcore (slick maneuvering, theatrics and diversion). But honesty it is not. And when on account of it the guilty go free, it has consequences -- ask the people OJ robbed after his acquittal.
Adults cannot just blandly walk away from responsibility for what they spend their waking hours doing and seeking. This is so even if they are only seeking it in a representative capacity. The canons insulate you, as the defense attorney, from blame for what your client has done, and from what your successful efforts will enable him to do next. Whether they insulate you, as a human being, from what you have brought about, and its aftermath, is a different matter.