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What Defense Lawyers Really Think

Pop quizzes keep the blood moving, so here's another:  What prominent lawyer said the following about the Trayvon Martin trial?

I am disappointed by the jury's verdict and hoped that despite the lousy job the DA's office did during the trial, they'd find something to hang a conviction on. This certainly wouldn't be the first time that someone is found guilty with something less than proof beyond a reasonable doubt, and I admit that such a result would not have bothered me.

You might be thinking that this must be the improbable return of Mike Nifong.  You remember, the corrupt  Democratic DA from Durham, NC, who indicted three white members of the Duke lacrosse team for a rape that never occurred?  Mr. Nifong hoped that the jury would "find something to hang a conviction on,"  even if the something turned out to be evidence he manufactured.  The reason he harbored such a hope is that he needed to whip up support among angry blacks  --  a big constituency for Durham Democrats  --  for his primary election race to retain his office. 

But alas, this time it's not Mike.
The quotation comes from an unexpected source about eight miles down the road from Durham.  Let me introduce the source as she's described in her law school's web page (quoting the first and last paragraphs):

Tamar Birckhead is an associate professor of law and the Interim Director of Clinical Programs at the University of North Carolina at Chapel Hill where she teaches the Juvenile Justice Clinic, the criminal lawyering process, and juvenile courts and delinquency. Her research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, indigent criminal defense, and the criminalization of poverty.


Professor Birckhead received her B.A. degree in English literature with honors from Yale University and her J.D. with honors from Harvard Law School, where she served as Recent Developments Editor of the Harvard Women's Law Journal.

The point to remember here is that Prof. Birckhead is no fly-by-night radical.  A Yale and Harvard graduate, she is a distinguished attorney and scholar with many years' prior service as a public defender in Massachusetts.  She has been sought out by the most prominent media outlets for the defense perspective on issues in criminal law  --  outlets that include (as the UNC website notes) CNN, Fox News, ABC News, the Wall Street Journal, the Christian Science Monitor, the National Journal, Bloomberg, and the CBC, among many others.

In other words, when Prof. Birckhead speaks, she speaks with the authority of the educated, mainstream defense bar, and people listen. 

Next pop quiz:  What would be the reaction if, say, a first-year ADA in magistrate's court, fresh out of Barely Accredited Law School, had said, about even one of the prosecutions that occurred on his watch, "This certainly wouldn't be the first time that someone is found guilty with something less than proof beyond a reasonable doubt, and I admit that such a result would not have bothered me."

We all know the answer to that.  He would be fired the next day.  Defense blogs would be ablaze.:  "DA Finally Admits Nazi Underbelly of Prosecution Thinking."  No one would defend him, nor is a defense possible.  For a lawyer, any lawyer, to say that, hey, it's OK for a defendant to be convicted without the legally required proof is simply astounding.  And for a defense lawyer  --  you know, someone dedicated to the Constitution and all (as they ceaselessly tell us)...........well, my goodness.

Prof. Birckhead is not a prosecutor, even a low-level one, but she occupies an important and influential position as a teacher and spokesman.  Has she been fired from her job running the clinical training (i.e., courtroom) program for dozens of lawyers-to-be?  No.  Has she been disciplined in any fashion whatever?  Not that I know of.  Has she even been criticized?  Well, yes, there was some criticism by defense types commenting on her remarks (which were given a platform on PrawfsBlawg).

Here is some of the "criticism":

"That's a somewhat troubling if honest response."

"The honesty of this remark is refreshing. But the fact that it is made by someone responsible for teaching future lawyers shocks and saddens me."

"Even if it seems snarky, I would genuinely like to understand your perspective. I have watched the commentary about this trial in horror. You are clearly smart and appear intellectually honest; if I can't understand how you could reach your conclusion, then I'm never going to understand how anyone could reach the conclusions that have induced my horror. If that's the case, I'm going to go sit on a beach in Thailand until my liver gives up, or something."


What could account for Prof. Birckhead's view that, in the right politically correct circumstances, it's OK to convict the innocent?  What could account for the largely tepid and sympathetic criticism (such criticism as there was, and there wasn't much) it received from the defense bar? Note that I'm not referring to criticism that her remarks were too impolitic, unstrategic or revealing.  There's been some of that, sure.  I mean criticism of the idea that Zimmerman  --  as the live pinata who embodies the multitudinous sins of the United States  --  should be poked into jail even though not proven guilty.

I'm tempted to say that what, at bottom, accounts for Prof. Birckhead's view is the moral agnosticism at the center of defense work.  The first canon of defense lawyering is that it makes no difference whether the defendant is guilty.  Indeed, it's not even a subject of curiosity.  You do your darndest to beat the rap, guilty or not.  If he did it  --  and is fixing to do it again if and when he hits the street as the result of your efforts  --  hey, look, that's How Our System Works.  The client's next victims are a matter of no concern.  The client is to be humanized, and the victims  --  past, present and future  --  dehumanized, if considered at all, which for the most part they aren't.

This, in defensespeak, is called "compassion."

But I digress.  The point is that, once you've anesthetized your conscience to the point that you've decided there's no moral problem in freeing the guilty to do it again, it's only a small step to deciding there's no moral problem in convicting the innocent to suffer in jail.  Remember, the truth about guilt and innocence doesn't count.  That's the whole credo of defense work.

So that's a possible predicate for being morally able to want the conviction of an innocent man (as long as he's somebody else's client).  

But I doubt that's what really accounts for Prof. Birckhead's view.

The more likely candidate, in my judgment, is something even more deeply ingrained in the ideological defense bar:  The certainty that America (or Amerika, as they like to say) stinks.  It's a malevolent, imperialist, and  --  most importantly for present purposes  --  racist cauldron that serves up injustice to blacks by the boatload.  It deserves the hate it gets, as we have often been reminded, cf. Jeremiah Wright, Van Jones, Al Sharpton, Prof. Kathy Boudin, etc.  It's a mere drop in the bucket of the revenge white Amerika has earned to imprison one inconsequential "creepy-ass cracker" (Zimmerman is half-Hispanic, but when you're this full of anti-American venom, that will do).  And what better way to begin the revenge than to push aside the rule of law and convict a white, or white enough, defendant, proof beyond a reasonable doubt optional?


I want to make clear that this post is not intended as a statement about Prof. Birckhead.  To the very slight extent I have had contact with her, she struck me as a serious defense-oriented scholar of good faith, friendly and pleasant, and representative of the deepest convictions of those on the defense side.  It is, of course, for precisely that reason that her views are so important, and so revealing.


Bill, my primary bar (debtor in bankruptcy) has been, and in my opinion largely unwarranted, much criticized to the point Congress passed a law largely to address our alleged deficiencies. See Bankruptcy Abuse and Consumer Protection Act of 2005.

So in your opinion what percent of defense attorneys are "bad apples"? Just a few or the whole bunch?


It's not that I think defense lawyers are bad apples, although of course the defense has a share of them, as does the prosecution and every other component of our profession. Indeed, many (probably most at this point) of my lawyer friends are in private practice, not a few of them in criminal defense (which is where many ex-AUSA's head). I don't think they're bad apples.

It's not the people but the ideology of criminal defense that I find problematic. As I said in the entry, the whole enterprise depends upon (indeed, under the present canons, it demands) being oblivious to the truth (which in most cases is that your client did it).

This ideology paves the way for, and eventually is likely to produce, an anesthetizing of the conscience; you can only belittle the truth so long before your inner appetite for it begins to decay. Once this happens, it makes perfect sense that you're OK with an innocent (white) man's being sent to jail for the self-defense shooting of a black, because jailing him is in the service of the deeply-held grievance: That whites have caused blacks a huge amount of suffering, so, hey, a little payback is in order.

In other words, the moral holiday of obliviousness to actual guilt or innocence paves the way to other moral holidays. Just as this obliviousness is justified in the name of what is said to be a greater good, other heretofore prized values, like the requirement of proof beyond a reasonable doubt in a criminal case, can also be thrown over the side of the boat if The Cause Is Pressing Enough.

Retribution against White Amerika is one of the causes increasingly thought to be pressing enough. What that means is that, very ironically, very tellingly, and very ominously, those who previously had been most insistent on solid proof are willing to let it go. A good place to start letting it go is with a pudgy, officious, white (sort of) wannabe cop.

And that is why even a distinguished defense lawyer is ready to see George Zimmerman sent to the slammer. Guilt doesn't matter, remember. And it's seldom mattered less than when the ignoring of the BRD standard can be enlisted to exact overdue revenge.

George Zimmerman, you see, is not an individual human being. He's a symbol -- a symbol of what liberals love to call White Privilege. (It's precisely because he was seen as a symbol, not a person, that he didn't even have to be all that white). As a symbol, he's not entitled to what defense lawyers would ordinarily call due process. He can get less.

And let's be honest about it, a lot of what he's been getting has a shorter name than "less-than-due-process." The shorter name is "hate."

Bill's analysis of the spectacle that has accompanied the prosecution and subsequent acquittal of George Zimmerman is cogent and deeply troubling.

The "Justice for Trayvon crowd" was never about equal justice and due process. They simply wanted Zimmerman's head on a platter-evidence be damned- and their actions are symptomatic of an ever-deepening racial divide.

I have some sympathy for criminal defense counsel especially public defenders because they have a crappy job where they have to represent and interract with the scum of society on a failure basis. Nor do they get to choose their clients.

However, someone has to do it. I'm just glad it isn't me

She is nothing more than a Andrey Vyshinsky. She would be a fixture at Stalin's Show Trials.

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