The Fundamental Principles of American Justice

November 22, 2009
/ Author: Rick

Scott Greenfield’s blog, Simple Justice, is probably the only legal blog where I try never to miss a post.  If I fall behind, it bugs me, and when I get the chance, I’ll catch up by spending an hour or more reading every post I’ve missed.  One of these days, I’m going to continue digging back into the older posts, from before I knew about his blog, and read all those, too.  This is not to say that I agree with everything he says, but everything he says definitely makes me think.  And I agree with enough of it that I wish there was someone like him in my jurisdiction to mentor me.  (Scott’s been practicing a lot longer than I have.)

One of his posts from today — A Blog That Shouldn’t — gives me the chance to talk more about something that matters very much to me.  It concerns the question of defending guilty people.

I’ve touched on the topic before, particularly in The Crucible of Adversarial Testing and, to a lesser extent, its companion post, The Moshpit of Non-Adversarial Convictions. I’ve also discussed the difficulty of defending innocent people.

In The Crucible of Adversarial Testing, I noted that:

The reason I do what I do and the reason we need good defense attorneys is to ensure that we sacrifice neither the Truth, nor unarmed prisoners, to the State’s trained gladiators.

My hope is not that I “help put murderers and rapists back out on the streets,” but that because I do what I do — in the words of Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit — “justice will emerge from the forensic duel in the courtroom.”  (Irving R. Kaufman, “Does the Judge Have a Right to Qualified Counsel?” (May 1975) 61 A.B.A. J. 569, vol. 61, p. 570. …)

The defense of guilty people is something even many criminal defense attorneys have difficulty thinking about, much less doing.  I personally think it plays no small part in helping those bottom-feeders contract attorneys I’ve seen who handle their cases in assembly-line fashion.  After all, if your clients are guilty, what difference does it make if you line them up outside the courtroom, explain certain things about their rights to them en masse in legal terms they may or may not understand, taking no questions, and then turn to each one individually — not even separating them from the group for privacy! — and tell them the “deal” you got for them, then hand them a form to read and sign?  Hell, if they didn’t want a defense attorney like you, they shouldn’t be out committing crimes, right?

Getting back to Scott’s post,  Scott had appropriately criticized a law student who tried — and failed — to address the question of how (or why) one defends guilty people.  Scott did not comment on what I consider the core failure of the answer.  The core problem is in the student’s statement that:

It’s the attorney’s duty to present their client’s side of the story to help facilitate a fair outcome.

No, it’s not.  At least not in the practice of criminal defense.  (I don’t think it is when representing defendant’s in civil cases, either, but as I’m not a civil attorney, I’ll leave that for someone else to explicate.)

For one thing, when defending someone accused of a crime, the “client’s side of the story” may never be told at all.  It’s not a question of “here’s the prosecutor’s story” versus “here’s the accused person’s story.”  Accused people aren’t required to provide some alternative to the fact-finders.

The fundamental flaw in modern law is the failure to recall — the failure to wholeheartedly endorse — a fundamental principle of our system of justice.  In fact, it’s why we no longer have a system of justice.  What we have is a legal game of tic-tac-toe.  Sure, we pay lip service to the concept; we mumble the right words, at least most of the time.  But we don’t endorse the words; we don’t allow those words to guide our actions.

But the words that linguistically represent, that aim to communicate the fundamental principle of American justice, are these:

The defendant has pleaded not guilty to the charge and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence.  (Taken from a proposed set of jury instructions.)

Despite its frequent use in both legal and non-legal contexts, “presumption” is not a word with which many people are familiar.  (It bothers me how often judges, attorneys, including defense attorneys, use words their clients do not understand.  But this is something for another blog post (someone remind me later!).)

The word is related to the words “assumption,” “assume” and “presume.”  All these words have as their root the Latin word “sumere,” meaning “to take.”  To “assume” something is to adopt or accept.  To “presume” is to take in advance.  You can think of it either as “accepting in advance” or “taking in advance.”

In other words, when we “presume” someone “innocent,” we take, in advance, the idea that he is.  Having taken this position, we give it up only after someone else — in a criminal law case, the prosecutor — proves that this is not true.  We stop believing the person is innocent only if the other person proves that our belief in the person’s innocence is incorrect.

There’s a corollary to this, I think, for jurors:  If you truly cannot “take,” or accept, that the accused person sitting at the table in the courtroom is innocent until after the prosecutor proves to you that this is not true, then you don’t belong on that jury.  If you allow yourself to become part of that jury when you do not believe the accused person is innocent, you are behaving in an immoral fashion; you are behaving hypocritically at best and, one might say, you are even behaving in an evil manner.  For by allowing yourself to be seated on the jury, you are essentially telling the judge, the attorneys, the accused person, all your fellow jurors, and the world, that you believe the accused person is innocent and you are there to permit the prosecutor to try to convince you that you are wrong.

You’re not there “to hear both sides of the story.”  This is how the law student (and many others) made the fundamental mistake in understanding “how someone can defend guilty people.”  There is no “client’s side of the story” to present.  For that matter, at the start of the trial, there are no guilty people.

This is, however, probably not a completely satisfying answer.  And I’m not going to “cheat” you out of an answer that (I hope) satisfies you.  Because what a lot of people mean when they talk about “defending guilty people” is “defending someone you — the attorney in whom they have supposedly confided, who supposedly has access to even more information about guilt than the prosecutor — know really did commit the crime, even though it hasn’t been proven to anyone else in a court of law.”

Many of the people a criminal defense lawyer defends will be “guilty” in this sense, even if they are never proven guilty.  (Remember, any of you who may be jurors reading this, that you don’t know which of the people me or other attorneys are defending at the moment fit into this group.  Your presumption is that anyone we’re defending who hasn’t been proven guilty is not guilty.  Unless you accept this, there is no such thing as “justice.”)

A criminal defense attorney who said “I’m only going to defend people I know are not guilty,” first of all, would sometimes refuse to defend some people incorrectly.  That is, it’s almost certain that sometimes the attorney’s judgment would be wrong: some innocent people do look guilty at first blush.  And when an attorney is deciding whether or not to accept a new case, that’s where she is: first blush.  The attorney doesn’t even usually have more than a shred of evidence one way or the other when deciding whether to take a case.

Secondly, the criminal defense attorney would soon find herself unable to feed and clothe her family.  Criminal defense attorneys don’t usually make a lot of money in the first place; even less if they’re turning away half the people who come to them.

But, thirdly, and most importantly, the defense attorney who refuses to defend “guilty” people fails to understand the job of a criminal defense attorney.  Because as I said above (and in The Crucible of Adversarial Testing), our system of justice — true justice — only works when someone makes the prosecutor prove, beyond any reasonable doubt, that the accused person is guilty.

That someone is the criminal defense attorney.

That is the job of the criminal defense attorney.  Our job is not to say, “This person is innocent.”  Our job is not, as is sometimes crassly put, “to win at all costs.”  Our job is not to do anything except make a prosecutor prove that what he or she believes is true is true: that the accused person, who everyone else really believes is not guilty, is actually guilty.

And that only works when we start with a group of people (a jury) or a person (the judge) starts with the belief that the person accused of the crime is not guilty and the defense attorney works hard to poke holes in the prosecutor’s theory.  If we start with fact-finders and judges of law who assume innocence unless and until guilt is proven and the defense attorney actually does his job, then we can sleep at night.  We can believe that very few innocent people will be convicted.

If we start with anything different — if we start with the belief that the person “is probably guilty, or we wouldn’t be here,” or if we start with a poorly-trained, lazy, or overworked defense attorney who doesn’t understand his or her job — then we can be sure of only one thing:  More innocent people will be convicted.

For too long, jurors — and judges who should know better — have started with a different belief.  They have started with the idea that the person probably committed the crime.  Or they have started with the idea that “there are two sides to the story and so far, we’ve only heard the prosecutor’s side, so we have to wait for either the accused person to admit guilt, or for a trial, to learn the truth.”

[T]he presumption of innocence is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts. The people of the United States have rejected the alternative to a presumption of innocence — a presumption of guilt — as being inquisitorial and contrary to the principles of a free society. (, Law Encyclopedia, “presumption of innocence,” last visited November 22, 2009.)

The presumption of innocence is essential.  But if a defense attorney doesn’t do the job of a defense attorney — to poke holes in the prosecutor’s story, to show its weaknesses, to make the prosecutor prove the case against the accused — then the essential requirements for justice cannot be met.  These are the twin towers of America’s greatness when it comes to justice.

So without hard-working and skilled defense attorneys who understand their jobs, there is no justice.

This is what I hope that student learns.  This is what I hope we all remember.

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  1. John Neff says:

    My revised points are

    1. The defendant has been charged with one of more crimes.
    2. The prosecution will present evidence that the charges are true.
    3. It is common for the defense to provide a rebuttal.
    4. The jurors are supposed to only consider evidence provided during the trial and they should start by presuming that the defendant is innocent. It is possible that after careful deliberation they may decide the defendant is guilty but if they have good reason to find fault with vital prosecution evidence they shall acquit.

  2. John Neff says:

    The beyond reasonable doubt standard does not work for me because there is no agreement as how to measure doubt (or if it makes any sense to do so). It seems to me that the outcome of trials is proof by demonstration that the reasonable doubt standard is irreproducible.

    I could modify point three to say it is common for the defense to provide a rebuttal.

    I could also say confidently change their minds in point four.

  3. John, first I want to thank you for stopping by. I am glad to see people are finally beginning to leave comments.

    Your understanding is almost exactly right. The only things I would alter are point 3 and a clarification on point 4.

    Regarding point 3, the defense does not necessarily provide a rebuttal. Although I suspect the defense will almost always put on witnesses and thus will provide a rebuttal, the law does not require this in order to obtain an acquittal.

    This is because, as you noted in your first version of point 4, the jury is supposed to start from the idea that the accused person is innocent and only changes their minds if there is evidence sufficient to change their minds and convince them that the accused person is guilty beyond a reasonable doubt.

    To merely say, “convict only if there is sufficient evidence to cause them to change their minds” seems to indicate that if there’s just enough evidence to make the jurors think the guy did it, then he’s guilty. And I think it too often does happen that way.

    However, what the law requires is something stronger. It requires that the jurors have their minds changed from innocent to guilty and that they do not have any doubts about that which are reasonable. This doesn’t mean that they don’t have any doubts at all. As the judge will almost always instruct, doubts are always possible to imagine. But the question is, are the doubts reasonable. If there are doubts which are reasonable to have, then acquittal is the correct verdict.

    This is true even if a juror still thinks, “Yeah, the accused person might have done this” or “I think the accused person probably did it.” That an accused person “probably” did commit the crime is not enough in our justice system, for a conviction.

    And so, returning to point 3, it might not be necessary for the defense to put on any witnesses or evidence at all. There may be no need at all for rebuttal evidence. The attorney may just try to show that the prosecutor’s story is wrong based on testimony the prosecution witnesses gave directly, or through the cross-examination of those witnesses.

    Certainly, there will be a rebuttal argument. The defense attorney will explain to the jury the problems with the prosecutor’s story and point out the holes in the evidence. (I can imagine a situation where even this would not be necessary. However, I don’t think any defense attorney in his right mind would fail to provide an argument, even if they did not put on any witnesses.)

    The law requires the prosecutor to prove guilt. The defense having a different “story” may help prevent the prosecutor from being able to prove guilt, but it is not necessary.

    The prosecutor might not have enough evidence to prove guilt beyond a reasonable doubt even if the defense never says anything at all.

  4. John Neff says:

    Speaking as a former jury panel member and a potential future juror my understanding of the process is

    1) The defendant has been accused of one or more crimes.
    2) The prosecution will present evidence that the charges are true.
    3) The defense will provide a rebuttal.
    4) The jury is supposed to only consider evidence provided during the trial and they are to start the process by presuming that the defendant is innocent. They should convict only if there is sufficient evidence to cause them to change their minds.

    An alternate version of point 4 is

    4) The jury is supposed to only consider evidence provided during the trial and they are to start the process by presuming that the defendant is guilty and they should only acquit if the is sufficient evidence to cause them to change their minds.

    The problem as I see it is to convince potential jurors that there is a fundamental and vital differences between the two versions of point 4.

  5. Kael: I don’t know what you could possibly mean by that, but if it’s alright, I’m going to take it as a compliment.

    However, the reason I don’t know what you could possibly mean by that is that my blog is nowhere near as useful as Scott’s!

  6. Very true about Simple Justice. However, you should take note that your blog is the same for many of us.

  7. I cannot elaborate without risking revealing identities because of the types of cases involved, so I won’t. As for whether I think less of them or not, I don’t think I do. I just find it odd.

    My personal belief is that “Attorney Jones” in your example is not very bright and is possibly in the wrong business. That’s my personal belief. Neither you nor “Attorney Jones” is required to share it.

    Not everyone is going to agree with me; I’m not going to agree with everyone. My original post was primarily about the job of a defense attorney (and about the presumption of innocence). I wasn’t writing a book intended to answer every hypothetical that arises relating to the practice of law. I think I’ve said what I intended to say. Nothing more; nothing less.

  8. “Several attorneys I know refuse to represent certain types of clients. I did not say they should do so even if they do not think they can do their jobs. I said I would surprised that they did not think they could do their jobs.”

    Can you elaborate?

    My question is whether less of them as defense attorneys because they refuse to represent certain types of client. (Is it the client that is declined, or any defendant facing a certain kind of accusation, or cases involving certain categories of victims.)

    Assume Attorney Jones. Jones lost a close friend to a drunk driver, so Jones declines to take any OUI/DWI cases, because Jones is concerned about being able to zealously represent the client, particularly if Jones came to the conclusion that the client might reoffend if acquitted. Jones is happy to represent clients in any other case from child abuse to murder, just not OUI/DWI. Is this inappropriate?

  9. It didn’t seem to me that you were unclear. Maybe I was?

    I don’t recall ever saying “real criminal defense” attorneys don’t have ethical conflicts. (I don’t actually recall using that phrase or concept at all.) They have them all the time.

    If, for any reason, including unwarranted prejudice, an attorney feels he cannot adequately represent a client, he should not represent the client. He should either turn down the case or withdraw.

    Several attorneys I know refuse to represent certain types of clients. I did not say they should do so even if they do not think they can do their jobs. I said I was surprised that they did not think they could do their jobs.

    And I continue to think what I stated in my original post above: an attorney who refuses to represent people just because they are guilty will not likely be practicing long.

  10. I may have been unclear.

    The decision about whether to accept a case or not presumably comes at the very start of the case — the attorney likely only knows what has been reported in the media and what the client and/or his family has said. I expect that, in most cases, that’s not enough information for counsel to come to a reliable conclusion about guilt. But I don’t see any reason why one should criticize an attorney who decides that this is not the case for him or her — any more than we should criticize a prospective juror who honestly says “I’m not sure I can be fair” at voir dire, again with little knowledge about the case itself.

    Things may get more complicated once the attorney has accepted the case, begun an investigation, and perhaps come to a personal conclusion about guilt based on the strength of the case and/or the client’s communications. If, at that point, the attorney comes to a conclusion that he or she has an ethical conflict, or even may have an ethical conflict, I’d much rather the attorney move to withdraw so that an attorney without a conflict can come in, rather than proceed because the attorney is concerned about losing face before a judge or his/her peers by making that motion to withdraw.

    I agree that a defense attorney ought not refuse to represent people that one subjectively thinks are guilty as a general rule, but I am concerned that the rhetoric that “real defense attorneys” don’t have ethical conflicts, ever, may create a barrier to an attorney honestly assessing whether he or she can zealously represent THIS client on THIS charge in THIS case.

  11. I certainly cannot disagree that if an attorney feels he or she cannot zealously represent a client, they should turn down the case. It doesn’t stop me from being surprised, though, that there are defense attorneys who turn down certain cases because they think that way.

    And my comments about “first blush” were made with cases where attorneys “think” their client is guilty firmly in mind.

    I realize not everyone will agree with me, but my own feelings are that if a criminal defense attorney thinks “I can’t do my job because this person is guilty,” then they just should not take the case. But they also should re-evaluate whether or not they are in the right practice area, or even whether they should be attorneys.

    Our jobs do not include being the ultimate decision-makers regarding guilt. That’s what a jury does. Our job is to force the prosecution to prove its case. The idea is that by doing this we will help to insure that the system will work and innocent people do not lose their liberties (or life!). If we do our jobs, even if we lose a case, everyone can have some faith that innocent people are not unjustly convicted.

  12. Much as I agree with the sentiments, there are cases I decline because I am not certain that I can zealously represent the client and I don’t want to have any doubts about any subconscious influences on my judgement.

    I don’t think we should attack other lawyers for deciding that a case, whatever it is, isn’t right for them. Just as one can, and should, decline cases if one doesn’t have the legal or technical knowledge to take them (and/or the time to learn what one needs to do it right), one should be able to decline a case if it hits too close to home without snipping by one’s colleages. This isn’t a competition to prove one’s machismo/machisma in taking on the worst of the worst.

    One of my concerns with defending the “guilty” is we, as attorneys, don’t know. Look at Cameron Todd Willingham, whose own attorney concluded he was guilty based on flawed forensics. Or some of the defendants in the Norfolk Four whose attorney decided they were guilty based on flawed false confessions and accusations and urged innocent men to plea and inclupate others. We may have opinions about the strength of the state’s case, but we do a disservice to our clients to assume that we know who is guilty.

  13. I have to agree, Gideon. I’m surprised whenever I meet attorneys who won’t take certain kinds of cases, as if there was a group of accused people who do not deserve a defense, or a fair trial.

    The scene I described with lining accused people up and explaining rights en masse and then basically telling them what deal they were accepting really happened. I saw lots of confused people who, in my opinion, did not realize there were other options. It was al I could do to keep from “interfering.”

    I really think that regardless of whatever else happens, people should understand what they are doing. Maybe in at least some of those cases, I would not get a different result, but I would work to ensure informed decisions were being made. If my clients don’t understand what is happening, I haven’t done my job.

  14. Defending “guilty” people is the life blood of our constitution, and is the reason we have a constitution to hide behind. The state thinks it is an all mighty agent of state power, but it is not. We, as American citizens, have to decide that we stand against the state. As someone who was wrongfully charged with a crime (I bit my batterer), and whose former boss (a prosecutor) engaged in full violations of the 4th Amendment, I know first hand what an aware and sentient “defendant” has on his or her attorney. I will never denigrate a public defender unless s/he can’t do the job I could do 10 years ago (I’m now too sick to do any legal work). I have worked both sides of the coins, granted, but give me the public defense side any day of the week.

  15. Who are these “many criminal defense attorneys” who find it difficult to think about defending guilty people much less doing it?

    I think if you have trouble “thinking” about defending guilty people, then you’re in the wrong business.

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