How Can You Defend Those People?
Andrew Cohen waxes philosophical about the question every criminal defense attorney has to answer at least once:
It surely is a sign of some great cosmic conspiracy that Jacques Verges, one of the most famous defense attorneys of all time, a man who unapologetically defended the Khmer Rouge, Carlos the Jackal, and countless other international villains and rogues, woulddiethe very same week that Abbe Smith and Monroe H. Freedman would publish a collection of poignant essays from notable defense attorneys titled “How Can You Represent Those People?”
“The Question,” as the editors title it, is probably asked in sorrow, anger, and curiosity, a thousand times a day. “What is really being asked is ‘How can you represent people you know to be guilty?’” write Smith and Freedman. “Not guilty shoplifters, marijuana possessors, drunk drivers, or political protesters—these could be us, our children, our parents. Not the wrongly accused or convicted either—even the harshest critics understand defending the innocent. The Question refers instead to the representation of guilty criminals who have committed acts of violence or depravity.”
“There are no right answers” to the Question, the editors hasten to add; it all depends upon the lawyer. As someone who has never been a criminal defense attorney, here’s how I would answer: Anyone—everyone— is entitled to a defense, and to a lawyer, because our rule of law is based upon the premise that the State must prove its case against a person beyond a reasonable doubt and because the history of the world, and of America, teaches us that the State is quite often wrong, or worse, when it accuses someone of crime. The principle of that—like the presumption of innocence or the right to confront a witness against you—is more important than is the result of any single case.
The motto of the National Association of Criminal Defense Lawyers is “Liberty’s Last Champion.” When the government tars your reputation with scandalous charges, the media speculates about your guilt, the public has already judged you guilty, and your family and friends have forsaken you, a defense attorney will still be there to protect your best interests.
It is right and good that the Sixth Amendment guarantees a right to counsel in criminal cases, however imperfectly enforced these days. When nobody else cares what happens to you, a defense attorney will be a living paraphrase of Buckley’s infamous alarum, standing between you and the government, screaming “stop!” at the machine-work of criminal justice, at a time when no one is inclined to do so, or to have much patience with those who so urge it.
The alternative to guaranteeing a lawyer to everyone accused of a crime is nothing short of tyranny over plain men & women by a class of civil servants with superior knowledge of the law. It is hardly advantageous to have a Sovereign who can arbitrarily decide who deserves the right to a lawyer and who doesn’t. Experience shows that when you make exceptions for the worst of us, those exceptions inevitably creep to include the rest of us as well.