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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