"Innocent 'Til Proven Guilty" Starts With Solid Legal Representation
That standard simply does not exist if the accused are not able to get that representation -- representation by talented, powerful defense lawyers.
There's lately been a public outcry every time a defendant who is publicly vilified gets a top lawyer, as if that lawyer is doing something immoral and wrong by taking the case.
Pressure is put on the lawyer to drop the defendant. Punishment is meted out, like when Harvard Law Professor and Faculty Dean Ronald Sullivan joined Harvey Weinstein's legal team and Harvard caved to pressure and removed Sullivan and his wife from their positions as deans in residential housing.
This is seriously problematic.
As Harvey Sliverglate and Monica Greco put it at WGBH, these defense lawyers are seen to "somehow become complicit in their clients' alleged transgressions, or somehow take on whatever moral failings their clients may have":
This sentiment reveals a fundamental confusion about the crucial role of the defense attorney in the criminal justice system, and could very well lead to an erosion of the constitutional rights of criminal defendants. If the most talented and in-demand criminal defense lawyers begin to hesitate before agreeing to represent the most unpopular accused, then those who are in the most trouble--those who need the most vigorous and effective defense--would have to suffer with mediocre representation (and, it must always be remembered, some of them will turn out to be innocent).The Sixth Amendment to the federal constitution speaks succinctly and with clarity on the subject. In addition to a defendant's right to be advised of the charges against him (or her, as the case may be), he has the right to be confronted (in court), face-to-face, with his accusers; the right to compel witnesses to appear and give testimony; and, last but hardly least, the right "to have the assistance of counsel for his defence." This right of the defendant has produced an informal but widely honored professional and moral obligation, within the judicial system and the bar, urging lawyers with the appropriate skills to represent even the most heinous defendants.
The fact that the evidence against a particular defendant might be--or at least seem to be--damning or overwhelming does not dilute the obligation cast upon the criminal defense bar. The fact that there are many who are either ignorant of or unsympathetic to this constitutional right does not alter the fact that lawyers have a special obligation to give vitality to the right.
...Sullivan and Dershowitz [for Jeffrey Epstein's legal defense] will almost certainly continue to honor the commands of the Sixth Amendment and their views of their own professional obligations. But these two are unusually tenacious, self-assured and imbued with a sense of professional and constitutional mission. Their difficulties will almost certainly deter the less brave members of the bar from representing the most reviled. This will surely hamper the ability of those who are in serious trouble - including the certain percentage who will undoubtedly be wrongly accused - to prove their innocence.
The outcry is because it seems as though whoever is richest gets the best representation and wins.
Like the Middle Ages when you hired a champion to fight for you. Now you hire one to argue for you. There've been too many public cases where it's the modern equivalent of some jacked bodybuilder fighting a grandma.
I don't know how to make it fair. If we turned lkawyer into a civil servant job where you get whoever they assigned you, the field would not be lucrative enough for lots of people to go into it.
But the system of whoever is able to pony up the most money wins is massively fucked up.
The answer isn't to take legal help from the rich people, but to GET legal help for the poor people... but how? There are so many poor people needing legal help!
NicoleK at December 20, 2019 10:35 PM
Most of the outcry you describe comes from Progressives, rather than traditional liberals, and seeks Mob Vigilanteism. Those who oppose it are successful (and wealthy) enough to withstand the social justice mob, and willing to face ostracism socially and professionally..
Wfjag at December 20, 2019 11:50 PM
Thank you for writing this Amy.
Jen at December 21, 2019 2:29 AM
As NicoleK says there is a reasonable complaint in how different the outcomes are depending on who your representation is.
Unlike her I don't see this an issue with paying more for those who cannot afford the best lawyers. Instead we need to change things so that justice is more uniform and predictable. We have far too many laws. And too much of it is in the 'unwritten' format. Having more resources so you can process more information gives you a significant benefit. Also much of the law is ambiguous. Or at least people try to make it so. A perfect example is Warren's wealth tax. It is unconstitutional. This wasn't reasonably debatable. The constitution is quite clear on this. But now she has her lawyers trying to reinterpret words so she doesn't have to follow the law and get an amendment passed to enact her plan. Same with other judges that found 'penumbras' and 'emendations' to enact their preferred policy without real legal support.
If the law was clear it wouldn't matter who your lawyer was. It wouldn't matter how nice his clothes were. That is a far better solution than trying to find more money to pay for better lawyers. Instead make those cheaper lawyers more effective.
Ben at December 21, 2019 6:10 AM
We seem to be stuck in a cycle of short-sighted outrage. "Tear the system down because we're outraged about this right now!"
The long-term consequences for denial of adequate legal protection is an erosion of the protections our legal system provides the accused. We will pay the price later and it won't be pretty.
Far too many decisions we're making now are short-sighted and done in the fervor of the moment. We seem to have lost the ability to think things through. Cancel Culture ignores the future in favor of the passions of the present.
What happens when lawyers will no longer defend unpopular defendants? What happens if that undefended unpopular defendant (say that three times fast) is innocent? Are we prepared to accept a judicial system that prizes popularity over truth? 'cause that's what we'll get.
Conan the Grammarian at December 21, 2019 6:59 AM
Mob rule and justice are incompatible. Mobs lynching people (mostly white victims by the way) were not always right, nor are internet mobs.
cc at December 21, 2019 11:22 AM
The one step towards a solution I see is to give the public defenders office the same resources as the district attorney.
Matt at December 21, 2019 10:25 PM
Another step would be to give DAs credit for discovering that the person they are prosecuting is innocent. It is not the government's job to convict innocent people and DAs should be celebrated when they get evidence the person they are prosecuting is innocent and drop charges. The problem is all the incentives are in the other direction.
Matt at December 21, 2019 10:36 PM
What's worse is that most of the time, the DA can and will start by charging you with something that would be excessive even if you were the bad guy. Then they offer you a plea bargain you can't refuse, and just like that, none of your rights matter.
This is what plea bargaining is all about, and the practice needs to be outlawed.
While we're at it, juries should have the right to either decide the sentence, or at least know what it will be before they vote guilt or innocence. Otherwise they can't do their main job (to nullify whenever justified).
jdgalt at December 22, 2019 2:01 PM
I'm late to this party, but to add to what jdgalt wrote above, there needs to be an "anti-piling-on" statute. Only charges that directly relate to the alleged crime should be permitted to be heard in court. These days, prosecutors add on "conspiracy", "obstruction of justice", "making a false statement" and "money laundering" to damn near everything, and because they are so nebulous, they are very difficult to defend against. We know we have cases of innocent defendants pleading guilty because trying to defend themselves against a laundry-list of charges would be financially ruinous.
Cousin Dave at December 23, 2019 7:28 AM
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