GateHouse Media
February 7, 2020
The American tradition of zealous representation of
unpopular clients was established 250 years ago with John Adams’ representation
of the British soldiers charged with murder during the Boston massacre. Adams’
trial summation set the standard for law and order.
Adams, who would later serve two terms as president of the
United States, said of justice, “On the one hand it is inexorable to the cries
and lamentations of the prisoners; on the other it is deaf, deaf as an adder to
the clamours of the populace.”
Today, more than ever, the clamor of the populace - through
news media and social media - can almost instantly accuse, try and convict a
person in the court of public opinion. Harvey Weinstein is on trial in New York
City for sexual assault. Although there are two alleged victims in his trial
and another four women who may testify about Weinstein’s prior bad acts, the
media has reported on as many as 80 other women who claim to be victims of
Weinstein.
Lawyers are often intentionally, or unintentionally, drug
into the glare of the media and no longer perceived as only representing the
accused, but of siding with the reprehensible “monsters.”
A lawyer faced with the decision to take on a controversial
client must legitimately ask herself, “Will I ever get any more law business in
my community if I take this case?”
The Oklahoma City bomber Timothy McVeigh’s attorney, Stephen
Jones, shortly after accepting the case, was asked by a CNN reporter why he
took the case. He replied, “I have, throughout my professional career, believed
it was a lawyer’s duty to defend unpopular cases.”
Attorneys are advocates for others. Many people understand
that representing the person or issue does not equate with accepting or
endorsing what a particular client does. In practice, however, many people have
difficulty accepting that a pedophile, terrorist, mass killer or racist hate group
is entitled to legal representation.
At times, attorneys are demonized for representing
defendants charged with heinous crimes - as if there was something wrong with
providing a defense to someone charged with a crime. Such conduct undermines
the fundamental protections of the Sixth Amendment to the United States
Constitution, “to have the assistance of counsel.”
Criminal defense attorney and Georgetown law professor Abbe
Smith wrote several years ago, “My clients, no matter what they may have done,
aren’t wicked. They are damaged, deprived or in distress. Their crimes can be
understood as the products of awful lives, or of being young, hot-headed and
lacking in judgment, or of not having the mental wherewithal to know what they
were doing. There is always a story.”
Defense counsel has the responsibility to act zealously
within the bounds of the law and standards on behalf of the client. There is no
duty to, and defense counsel may not, execute any directive of the client which
violates the law or rules of court. In representing a client, defense counsel
may engage in a good faith challenge to the validity of such laws or standards
if done openly. The principles embodied in American Bar Association Model Rules
of Professional Conduct include “the lawyer’s obligation zealously to protect
and pursue a client’s legitimate interests.”
Yet, every criminal defense attorney is asked this question,
“How can you defend someone you know is guilty?”
Irving Kanarek represented Charles Manson, who was convicted
in 1971 of conspiracy to murder actor Sharon Tate and six other people.
He told The Guardian, “I would defend a client who I knew
was guilty of horrific crimes. They have to be proved guilty. I’ve had cases
where people were guilty as hell but they couldn’t prove it. And if they can’t
prove it, he’s not guilty. In that case, the person walks free. That’s American
justice.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino.
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