Legal Agility

Mark Bennett wrote a great summary of the discussion on justice and criminal defense that has been going around the legal blogs lately. Personally, my favorite post this time around was Gamso’s, but they’re all worth checking out. It’s a timely discussion for me, because a dear friend of mine asked me again recently how I can bring myself to defend guilty clients. (It’s always a timely discussion, really. I hear this question a lot.)

“All my clients are innocent!” I told her, laughing, but gosh darn it, she wanted a serious answer. She’s asked about this before, and I’ve gone through a whole laundry list of answers for her every time. None of them are really how I justify it to myself, but maybe I’ll chance upon one eventually that helps her understand.

I can explain that I’m not a retributivist, and I don’t really see how putting even guilty people in prison does any good for anyone. I can argue that only by defending guilty clients can we obtain judicial decisions that protect everyone’s civil rights. Or add that we’re all guilty of something, given how far-reaching criminal law has become. I can point out that I can never know who is truly guilty or truly innocent, and I’d rather fight for a guilty person to go free than for an innocent person to be imprisoned. I can even suggest that we have faith in the system, but not with a straight face.

It’s like trying to explain your feelings, though. Why do you feel the way you do? You don’t really know. When your spouse or parent or therapist asks, you may try to explain, but if you’re honest with yourself you’ll realize that you’re just making it up as you go along. I can try to explain why I have no qualms about criminal defense, but when it comes down to it, I simply know where I stand.

I don’t like hurting people. Is that so hard to understand? When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I can’t know whether anyone is truly guilty or innocent, or what they deserve, and frankly, I don’t care. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.