The Defense Lawyer: Understanding the True Role of Defense Counsel

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Wednesday, February 27th, 2019
The Defense Lawyer: Understanding the True Role of Defense Counsel

Introduction

Probably one of the most misunderstood jobs in the American culture is that of the criminal defense lawyer. To be blunt, the job is not about making lots of money, ego, getting a defendant off, or about having a professional stature in the community. Rather, it is about being a part of a higher moral calling. A calling where a righteous and courageous person stands against all the forces of government and negative public opinion for the sake of American history and in the names of justice and fairness.

The American Bar Association’s Criminal Justice Standards for the Defense Function, at Standard 4-1.2 (a), “Functions and Duties of Defense Counsel,” provides:

Defense counsel is essential to the administration of criminal justice . . .

Well, to the ABA, “duh!” Indeed, without defense counsel there can be no justice. That’s because there cannot be justice if its administration is left solely to the government. Like our Founding Fathers relied on “minute men” for protection during the Revolutionary War, so too do our citizens rely upon defense lawyers for their protection from our own government! The defense lawyer is here to police our government!

The Defense Lawyer Job Misunderstood

Most people (including judges, prosecutors, and even most defense counsels) misunderstand the true role the defense lawyer plays in our criminal justice system. Mistakenly, most believe it’s the defense lawyer’s job to “get the defendant off” of the charge. While that might be a collateral consequence of good representation, that is not the primary role of the defense lawyer. Rather, it is the defense lawyer’s primary goal to assure that every single statutory, state and federal constitutional right is protected. Incidentally, that duty is not only the role of the defense lawyer, but also that of the prosecutor and the judge.

The Prosecutor’s Primary Statutory Duty

The Texas Code of Criminal Procedure, Article 2.01, actually spells out the primary duty for the prosecutor as “[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done”! (emphasis added).

The Defense Lawyer’s Ethical Duty

The ABA Standard 4-1.2 (b), “Functions and Duties of Defense Counsel,” provides:

Defense counsel have the difficult task of serving both as officers of the court and as loyal and zealous advocates for their clients. The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity [emphasis added].

The Defense Lawyer’s Constitutional Duty

Probably the best, and most accurate, description of the defense lawyer’s constitutional duty can be found in the concurring opinion of Justice White from the case U.S. v. Wade, 388 U.S. 218, 256–258 (1967). In Wade, he wrote:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the con­viction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth1 [emphasis added].

Collateral Consequences Are as Important to Consider as Statutory Punishments

Ideally, all the aforementioned players should not be holding out for one side or the other to win, but for the system of justice to win. For the prosecutor this would mean dismissing cases in the interest of justice, even where a defendant was guilty. It also means a guilty party is not to be over punished. This would include consideration by the prosecutor of any collateral consequences that would result from any prosecution. Here, it is the defense lawyer’s job to make sure the prosecutor knows of those collateral consequences.

Policy Cannot Replace Common Sense or Reality

From the prosecutor’s perspective, treating everyone the same, in many instances, results in many being treated unfairly. For example, assessing a fine of $10,000 to a billionaire, compared to a blue-collar worker, would not be the same punishment. To the former it may mean nothing, whereas to the latter it could make the difference between a parent providing a college education for their child or not. Another example would be a DWI suspension of a driver’s license for a non-commercial driver who was employed as a computer programmer, compared to a commercial airline pilot who would also suffer a suspension of his pilot’s license, even though the DWI was not related to flying.

Sadly, this concept of treating everyone the same is almost universally misunderstood by prosecutors, who may believe that obtaining a conviction is more important than true justice. Here, it’s the role of the defense lawyer to point out the injustice of a “treating everyone the same” policy and to remind the prosecutor of the words of Thomas Jefferson: “[E]xperience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

Understanding the True Role of the Defense Lawyer

Belonging to many lawyer listserves, I am dismayed by the numerous lawyers who celebrate when a guilty person is acquitted. While it would be proper to celebrate an acquittal due to insufficient evidence to establish proof beyond a reasonable doubt, or because a motion to suppress evidence was granted because the government violated the person’s rights, it would not generally be proper to celebrate a “not guilty” verdict of a truly guilty person for that sake and sake alone. We all win, including the innocent and the guilty, when our system of justice works as intended. We all lose, including the innocent and the guilty, when a judge makes a wrong decision. This is especially true where the judge’s error is based on their cowardice to withstand adverse publicity that might follow when a guilty person is set free. Further, we all lose—both the innocent and the guilty—when a prosecutor cheats to win so good publicity can be garnered to support a campaign. With that said, it would be proper to celebrate a guilty person’s wrongful acquittal where they had already been sufficiently punished and any further punishment would be overkill, unjust, or would serve no purpose to society or the concept of rehabilitation.

Courage Not to Back Up and Keep Standing Tall

Likewise, we all lose where a defense lawyer does not give clients a 100% effort at protecting their rights at every step of the process. ABA Standard 4-1.2 (b) spoke to the defense lawyer’s need for “courage.” In truth, any defense lawyer who shows up to represent a client without 100% courage to do the right thing is cheating both the client and the system. This is especially true where the client is factually guilty.

Anything less than 100% is not “effective assistance of counsel”! That said, the 100% should be aimed at the effort of protecting rights and not necessarily the result. Here, that 100% would also include protection from punishment that has already been meted out and would serve no purpose other than to obtain a conviction label. Further, it would include protection from any overly harsh punishment.

Patriotism as a Constitutional Defender

In conclusion, when defense lawyers understand their true role, they are nothing less than a patriot defending their country. Edmund Burke, a political philosopher who inspired many of our Founding Fathers, said “[a]ll tyranny needs to gain a foothold is for people of good conscience to remain silent.” As for this thought, because of what is riding on the shoulders of defense counsel, the good lawyer must never remain silent when they are on duty.

It is also wise to remember the sage words of warning of President James Madison, often called the Father of the Bill of Rights, when he said “[i]f our nation is ever taken over, it will be taken over from within.” To that end, the defense lawyer becomes part of “from within” at any time they remain silent when the government violated, or is violating, the rights of a client. You cannot be a patriot lawyer if you are part of the “from within”! You cannot be a patriot lawyer if your effort is only 99%. Indeed, to be “effective” as the founders envisioned, patriot lawyers must always give it their all.

As a defense lawyer, consider this self-test to determine whether or not you are a Patriot Constitutional Defender. Take note there were 56 signers to the Declaration of Independence. If those patriots returned today in search of number 57 to join them, would they ask you? If yes, then thank you for being a patriot! If no, then perhaps you should rethink why you want to be a criminal defense lawyer.

Notes

1. ABA Standard 4-7.7(b) “Defense counsel’s belief or knowledge that a witness is telling the truth does not preclude vigorous cross-examination, even though defense counsel’s cross-examination may cast doubt on the testimony.”