Eben has spoken very highly of criminal defense several times in class. I am one of those people who still doesn’t know what kind of law he wants to practice, but criminal law is definitely one of the possibilities. I find it interesting, at least academically/abstractly, and I think I would enjoy being the guy in someone’s corner.

The problem is, as much as I would love to be the person defending the wrongfully accused, I think I would be uncomfortable defending someone I believed had committed the crime. This would be more or less true depending on the circumstances, but for some crimes in particular (gratuitously violent crimes, sexual crimes against women and children, white collar crime/public integrity/fraud), I think I would have a real problem.

I realize this is somewhat naive. Being a lawyer means playing a discrete role in a justice system, not being judge and jury every time someone comes into your office with a case. And in a just system, even the vilest offender ought to have a zealous advocate. If you can represent someone so well that the system cannot convict him, then that person ought not be punished.

This is all well and good in theory. But the reality for me is, if you’re a child molester, I don't want to be the one who sets you loose again.

I’d be interested in getting some different perspectives on this.

-- DanKarmel - 20 Apr 2010

As a quick follow up, my purpose was in no way intended to overlook the injustices against those who are wrongfully convicted or to weigh one type of injustice against the other. I'm just asking, from the perspective of this narrow situation, how you resolve the moral dilemma.

-- DanKarmel - 20 Apr 2010

@Dan - I did criminal defense work before coming to law school. Granted, I wasn't a lawyer, but I came in having the same qualms. It was one of the first things that I brought up with the lawyers that I worked with. There was one lawyer that was particularly passionate about exactly this. He gave me his top two reasons that he didn't have moral issues with the work that he did:

(1) Everyone has the right to a lawyer. And not just a lawyer, but someone that will vigorously defend them. His job was to be this lawyer. Someone had to do this, and he was that person.

To connect this to our class, Eben has given us the example of the people in trouble who need a "good lawyer". This is especially the case in criminal defense cases. People are in vulnerable states, and these lawyers step in and give them a voice when theirs is particularly weak.

(2) In addition to protecting his one client, his job was upholding the constitution. His work was to ensure that the constitutional rights of his clients weren't violated - so while he was fighting for his clients, he was also fighting to protect constitutional rights.

His argument was that he'd rather see 100 child molesters walk free than to see one of our fundamental constitutional rights (for example, 4th Amendment rights) be taken away. His work was two tiered - he was assisting his individual clients (who were certainly in need of help) and he was assisting all Americans at the same time. Prosecutors protected us in one way (by working to lock away criminals, in the most general sense) and he protected us in another (by making sure the government didn't go to far). This really resonated with me.

I still struggled with a lot of the work. But having a different perspective helped me quite a bit.

-- DavidGoldin 20 Apr 2010

Dan, these are very valid concerns. I think it's important to note, however, that similar moral issues arise on the other side of the aisle. I can't imagine being a prosecutor, and having to live with the possibility that I successfully prosecuted an innocent man. That being said, you're more likely to defend a guilty defendant than you are to incarcerate an innocent one- but the lower probability doesn't make me feel any more comfortable with the problem. I think the larger question raised in your post is the difficulty of engaging in a profession where your work has grave consequences for individual liberty.-- AlisonMoe - 20 Apr 2010

Dan, I'm glad you've raised this talk topic. It's something that I've had to think about as well recently, because I'm working this summer in capital appeals, and will be doing a community defense externship in the fall. I think, first, my main drive towards criminal defense comes from what David raised as the first point the lawyer he worked with raised: I believe that everyone has the right to a good lawyer who will vigorously defend him or her. When someone cannot afford quality defense, they are deprived of rights, and potentially end up with a greater risk of conviction and incarceration. For someone's liberty (and even life) to hang in the balance of such chances of circumstance, to me, is insupportable. Further, I think that for many people, the circumstances that have led them to crime in the first place (ie their economic situation, upbringing, unfortunate family situation) are such a roll of the dice that it seems inherently unfair that these same circumstances may lead to a lower quality defense and higher risk of punishment. I think some of my sense of the injustice of this system and desire to provide defense comes from an innate distaste for punishment and our societal justification thereof, but the argument that all people deserve an equal shot at justice applies with or without such a viewpoint.

This also brings me to another point: sometimes, punishment is justified as some kind of societal "payback" - not just just desert for a moral wrong, but some kind of re-paying of a debt that one has incurred by taking some unfair benefit from society by refusing to follow the rules. I feel that in many cases, a person who has been downtrodden and given nothing by society is not in any position where he or she "owes" anything - what kind of payback is punishment, for a person to whom "society" has given nothing? In defending, then, I think it's possible to give a second chance, through zealous advocacy, to people who have never meaningfully been given a first chance.

This brings me (finally) to the question you originally posed, Dan: how do we resolve a moral dilemma of defending those whose actions we may condemn? I guess I just don’t see it as a dilemma. I think that it’s possible to simultaneously view certain behaviors as immoral or abhorrent or socially undesirable, but meanwhile believe that the right to good defense applies to everyone, even those whose acts we do not agree with. My interviewer for my summer job asked me how I would react if someone said [about advocating on the behalf of death row inmates] ‘how could you defend someone like that? Don’t you think what they did was wrong?’ I think it’s possible to believe that someone did something wrong, but also fully and emphatically believe that everyone deserves an equal shot at justice, and that no one deserves to be murdered by the state.

This aspect of equality is also important, and I could probably go on, but I think I’m starting to ramble. In sum, I agree that it can be hard to reconcile a drive for equal defense with an innate sense of distaste for wrongdoing, but feel that equal justice requires equal access to good advocacy, and as such defending those who most need it is a noble and necessary endeavor.

-- JessicaHallett - 20 Apr 2010

PS - To address your point, Alison, I think I'd argue that the problem isn't so much one of prosecuting an innocent man/defending a guilty one (ie a problem of somehow taking the "wrong" side) but one of making sure everyone has an equal chance to be represented well. I'm not sure if I can articulate this distinction particularly well, but I think to look at it from a neutral basis, it's a matter of providing advocacy to everyone, and not about making sure the outcomes are "correct" or morally accurate from some subjective baseline.

-- JessicaHallett - 20 Apr 2010

@Jessica - I'd like to echo your assertion that representing people whose actions we may condemn is not a moral dilemma. As I stated above, everyone deserves vigorous representation. I think that the real concern regarding moral dilemmas in criminal law is when lawyers are pressured to engage in unethical tactics in criminal cases. All too often, this happens in large organizations (be it on the prosecution side or the defense side). And all too often, we read about this in the newspaper. People who go it solo or work with a trusted partner or two don't face as much pressure to break the rules. There is a clear line between representing one's client vigorously (ensuring that her constitutional rights are protected and that she gets the representation she is entitled to) and representing one's client unethically (breaking rules to get the best possible outcome). If one stays on the correct side of the line, he is defending the people - regardless of which side he is on.

-- DavidGoldin - 20 Apr 2010

Allison, I think you bring up a really key point, that the reason these issues are so particularly salient in criminal law is because of the profound effect that your actions have on someone's life. If you're bringing a civil suit against Morgan Stanley on behalf of Goldman Sachs, the implications are so much more abstract. Whether someone is "right" or "wrong," you're just moving chips around. By the way, this is also the reason that people who work in criminal law tell me they find the work so personally rewarding.

Jessica, I agree with your comment in regards to mitigating factors such as economic circumstances, which is why I mentioned certain crimes that make me particularly uncomfortable. I would have much less of a problem representing a bank robber than a child molester. And to respond to both yours and David's comments, I understand the theoretical arguments and would never for a second argue that someone shouldn't have the right to counsel when they're accused of a crime. I'm just wondering if I want to be the guy who does it.

-- DanKarmel - 21 Apr 2010

(All comments are of course to the best of my knowledge concerning criminal law and the justice system which is admittedly very little beyond the normal 1L) I think there is an important point being missed here. Unless you are a public defender or work for somebody else, you can choose to take a case or not. In my mind if a possible client came to me and told me the facts of his case, I would know whether or not I was able to give him the type of defense he deserves. If I felt I couldn't, I would tell him any information he needed to know and refer him to someone who I believed would provide him with competent counsel. Additionally, in a system of plea deals and graded sentencing I think it is inappropriate to think of a client's case as one would a sporting event. The goal is not to win. The goal is to make all ethical efforts to advocate effectively for your client. If your client tells you he is guilty you should be prepared to tell him what that means in regards to your defense strategy. For example, you will tell him that you won't put him on the stand to deny guilt. Based on the evidence, whether he is guilty or not, it is your job to inform him of your assessment of the most likely outcome of his case at trial in regards to both guilt and sentencing. You should then inform him of what you expect he is looking at in terms of a plea agreement. Counsel him on what you think is more prudent and let him make the decision of whether he wishes to obtain different counsel based on all this.

-- RobLaser - 21 Apr 2010

@Rob - you raise a good point, but I don't agree 100% with you. If you practice solo or are a partner at a criminal defense practice, technically you can choose your own cases. That said, as Eben pointed out in class on Thursday, to maintain solvency, you need to bring in a certain amount of money each month. Even if you have a small practice with minimal overhead, there are still quite a few costs. You will also want to bring home a salary for yourself. To cover these costs, you need to take on cases.

A large chunk of the defendants in criminal cases don't have enough money to pay private lawyers, so they rely on public defenders. Of the remaining defendants who can afford lawyers, many have relatively limited funds and thus can only pay a certain fixed amount. So if you charge these defendants over X, they won't be able to pay. It is relatively rare (statistically speaking) that you will get criminal defendants who can afford to spend large amounts of money.

Basically, unless you are a top criminal lawyer, you need to run your practice on volume. There are very few cases which alone will be able to cover all your costs. This limits your ability to pick and choose. Your choice is more constrained when you start out, since you will likely be less well known and will not have as much of a name for yourself. If you are very successful, your ability to pick and choose cases increases, but you will still likely be limited by financial concerns.

That said, the criminal defense lawyer in his own practice can always say no to specific cases that he does not want to handle, for whatever reason. But if he refuses too many cases, he will be unable to pay the bills.

(This is a very simplified analysis based on my experiences, but I hope that you can understand the general point)

-- DavidGoldin 21 Apr 2010