President's Message: Being a Defense Lawyer: Taking the Constitutional High Road—Winning Is Not Everything - By J. Gary Trichter

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Wednesday, November 2nd, 2011

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

With these words, John Adams, Dr. Benjamin Franklin, Roger Livingston, Roger Sherman, Robert R. Livingston, and Thomas Jefferson set the stage in our Declaration of Independence for the Bill of Rights and our job as criminal defense lawyers. Two of those inalienable Rights, and maybe the two most important in the Bill of Rights, are the Sixth Amendment’s rights to “an impartial jury . . . and to have the Assistance of Counsel for his defense.” Of the two, it is the right to counsel that is arguably the most important because it is that one which protects all of the others.

The role of defense counsel was best summed up in Justice White’s concurring opinion, joined by Justices Harlan and Stewart, in the landmark 1967 case of United States v. Wade. There, the concurring Justices said:

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 the truth.

Interestingly and importantly, the defense lawyer has no ethical obligation to win the client’s case. Absent having an innocent client, the good, or even great, defense lawyer knows not to put winning the case as the exclusive priority. Rather, the lawyer’s ethical and constitutional focus must be on protecting the client’s right to a fair trial. Like it is said in sports, it’s not whether you win or lose, but how you play the game. For the defense lawyer, it must not be all about winning, but how the justice system played—was the trial fair?

My 31 years as a criminal defense lawyer have taught me that far too many prosecutors and defense lawyers (and judges) unthinkingly get caught up in the competiveness of our adversary system. Sadly, they are of the wrong mindset: “It is all about the win.” Such thinking does a grave disservice to our justice system and to lawyers and judges who perpetuate it because the mindset ought to be “it is all about system working correctly and being fair.”

With an innocent client, it is morally just and expected that the defense lawyer would want the client to be exonerated. With the guilty client, however, is it right to have the same want? There is no black-and-white answer to this question for all situations or clients. For example, in some circumstances, a conviction’s label, punishment and/or collateral consequences can yield too great an injustice for it to be just. In other circumstances, the client may already be truly repentant and rehabilitated so that justice does not require a conviction. But yet, in other circumstances, where a client is actually guilty and then found guilty, if there was a fair trial, defense counsel ought to be satisfied and proud that justice was done. In this last example, if the trial was fair, then both the criminal justice system and defense counsel win. Indeed, when this happens, society and America wins. Clearly, there is no glory in freeing the guilty but there is great honor in standing up and defending that person’s right to a fair trial.

I am a diehard history buff. Our American History has been and is important to me. In my view, the 2.5 million U.S. Soldiers who died or were wounded protecting our country since its birth ought to have an everlasting lasting value that can and should be related to what we do. I believe these honored military men and women have consecrated our rights with their blood, making those rights sacred and in need of unceasing protection. Being a good defense lawyer is hard and demanding work. It takes a special vision, a lot of courage, and heightened constitutional understanding to properly do our job. The responsibility of protecting the rights of another is awesome. Without a doubt, done right and for the right reasons, being a defense lawyer is a most honorable profession. Like the soldier, our mission is pure and patriotic when we battle for others, and not for ourselves.

And so, I say to you as your president that your fundamental duty is not to the truth, nor is to win a “not guilty” for your client, but rather, it is to police the government to make sure constitutional rights are honored, respected, and protected – as much for the guilty as for the innocent. I am proud to be part of this Association because the members of this group are the true spirit and champions of fairness and justice. Absent you constitutional fighters, there would be no constitution! Thank you for your courage and patriotism.

—J. Gary Trichter
Your TCDLA President