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In Defense of Criminal Defense

April 29, 2009 6:54 PM

eople sometimes react strangely when they learn that I'm a criminal-defense attorney. On the one hand, some people are sort of predisposed to respect people who happen to be attorneys. I get the benefit of that sometimes, although not as often as I would have previously imagined. On the other hand, though, people are confused by the idea of defending criminals. A friend once asked me if I was revolted by the idea of having to say that guilty people are innocent. But that's not what criminal defense is all about.

First of all, criminal defense is not about defending criminals--it's about defending people accused of crimes. The difference might seem slight, but it's not. The difference between those two things is what makes our entire criminal-justice system, as flawed as it might be, one of the fairest, most admired justice systems in the world. I can think of two important justifications for the existence of criminal-defense attorneys: the need to protect the rights of the individual and the overall need for peace, order, and the rule of law within our society.

The criminal-defense attorney is the only person who takes the side of people accused of crimes. Every other actor in the system is, at best, neutral. Most are actively working against the interests of the accused. But the goal of our system is not high conviction rates. Rather, we want conviction rates that correlate with guilt and innocence as closely as possible.

We can look at someone that's obviously guilty and see the entire criminal-justice system as an egregious waste. That reasoning might make sense from time to time. But we also have to consider the case of the innocent defendant. It's easy to think that if someone's been accused of a crime, trials, juries, burdens of proof, and convictions are all mere formalities or, worse yet, affirmations of what we already knew to be true. But there are innocent defendants. Remember that Socrates, Jesus, and Superman were all criminal defendants at one point or another.

But perhaps the point will be better understood if you put yourself in the position of a criminal defendant. If you were wrongly accused of a crime, you would want an advocate who was familiar with the process, the actors, and the law. You would want someone to take up your cause and go to the mat for you. Without that advocate, you might very well be convicted and punished for a crime you did not commit.

So you need an advocate. But that's not enough. If we want fairness and justice and accurate results, we must assume that every defendant is innocent. That is the only way to make sure that those that actually are innocent are vindicated.

If every defendant must be honestly presumed innocent and every defendant that is presumed innocent must have an advocate, it follows that every person accused of a crime must have an advocate. And it also follows that it is the duty of that advocate to do everything within the law to protect his client's interests.

The criminal-defense attorney also ensures that all the other actors--judges, prosecutors, police officers, probation agents--act in accordance with the law. Although it may be rare, judges make mistakes, prosecutors overstep their bounds, police officers violate citizens' rights, and probation agents fail to follow administrative procedures. Again, if we focus on the innocent defendant, we see that the criminal-defense attorney is vital. We all agree that we want criminals caught and apprehended, but we also all agree that we want legal actors to act in accordance with the Constitution, the statutes, and the law generally. Criminal-defense attorneys act as a balance to ensure that all the other actors do everything they're supposed to and nothing they're not. It's another example of checks and balances in our government.

In the end, criminal defense is just as much about Truth and Justice as criminal prosecution. It is the goal of the system to achieve the correct result, and defense attorneys are bound to act in ways that will help the system accomplish that goal. We fight tooth and nail for our clients, but we do so honestly, forthrightly, and with integrity.

So, no, I don't find criminal-defense work revolting. To the contrary, I love it. And I am proud of the work I do.



5 Comments


butterflyfish said:

If you don't read Blonde Justice, you should.

Great post. I couldn't do what you do, not because of the "icky criminals" but because I am one of those people who takes it all to heart and takes it home with her (sad stories, tough lives, etc.) -- its why I left teaching. I didn't want to change who I was, but I did change how much of it I would expose myself to.

Glad you and people like you are out there.

April 30, 2009 5:54 AM



tRJ said:

"The criminal-defense attorney also ensures that all the other actors--judges, prosecutors, police officers, probation agents--act in accordance with the law."

Exactly right. I think too many people see the criminal defense attorney as someone's whose job is to "get the bad guy off." I see it as someone who is making sure the accused has his or her rights protected.

April 30, 2009 6:20 AM



LaurenI said:

I do this sort of thing out loud every time someone asks me "so what are you studying in graduate school?"

April 30, 2009 7:44 AM



Ismael Tapia II said:

butterflyfish,
That's been really tough for me. One of the things you have to do is recognize where your responsibility ends. It's not my job to help people find a house or get a job or leave their terrible relationship. It's not my job not to, I guess, but I have to focus on their legal issues. And it's really hard for me not to at least think that I should be doing much, much more.

tRJ,
Yeah, I hate that misconception. A fellow defense attorney put it best, I think, when she said that our job isn't to get acquittals, it's to get the best possible result under the law. Sometimes an acquittal is possible. Sometimes an acquittal of a guilty person is possible because the prosecutor doesn't have the evidence or because some actor did something very, very wrong. And if we can get our guilty client acquitted, then yes, we have to. But it's very rarely as clear cut as all that, and that's the way our system is meant to work: we protect the rights of the innocent individual so well that sometimes a guilty person slips through. That's preferable to the alternative, I think.

Lauren,
I assume you're talking about having to sometimes justify an advanced degree in History? Man, when will people understand that liberal-arts degrees are very important?

April 30, 2009 8:00 AM



Wade Garrett said:

I agree with you about the role of criminal defense attorneys.

Practicing criminal law in Brooklyn is different from practicing it in Dane County, I'm sure. In Dane County, people generally respect the law and those who enforce it, and I'm sure you are often faced with defending a defendant of color in front of a prosecutor, judge, and jury what are almost entirely white. That's not an easy task - I think of it as "the small town in Texas" phenomenon, because that seems to be how so many wrongful convictions and capital sentences come from, but clearly it is a problem all over the country.

In New York, the criminal procedure laws are very pro-defendant - low bails, strict speedy trial statutes, all felonies have to be indicted by a grand jury, defendants can ask for unlimited adjournments without being prejudiced in any way, strict pleading/accusatory instrument requirements, etc. Juries rarely convict, especially on gun cases (because people here aren't offended by having guns or even by using them in public, apparently) and drug cases (because all cops are racists and liars) and criminal contempt (because restraining orders are just pieces of paper). Jury nullification happens frequently.

The criminal courts in New York City are swamped; I recently got pleas on five cases against the same defendant on a case that was adjourned 15 times - yes, 15 times - because, on each of the first 14 dates, one of three things happened - the defense attorney never showed up, the defendant showed up too intoxicated to stand trial, or on a few occasions, because there were so many trials calendared for that court part on that day that they just never got around to mine. On all 15 dates I had to have my police officers ready to testify and the remedy for not having my witnesses lined up was dismissal. Eventually, the defendant got re-arrested and high bail was finally set, and so he pled guilty on all five of our cases just to get them over with. So at times I get frustrated with the criminal bar here in Brooklyn, because their strategy always seems to be to ask for as many adjournments as possible until eventually the DA's office loses the paperwork or one of the police officers retires or moves upstate or has a funeral or something and can't show up, at which point the case is dismissed, and they seem to want to avoid defenses on the merits at all costs. But that's not to say that it doesn't serve an enormously important role in ensuring that law enforcement follows the rules.

May 15, 2009 9:58 AM



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