Gideon's Trumpet

Gideon: Hillary Clinton And The Act Of Defending Guilty People

, The Connecticut Law Tribune



People hate lawyers. That's a scientific fact. While some 65 percent of people will, at some point, need a lawyer, 100 percent of them will always make lawyer jokes and consistently rank us between corporate fatcats and congressmen on the "most hated people in America" list.

If one were to drill down into the statistics, one would indubitably find that it is criminal defense lawyers who skew the average. It's no secret that people hate us even more than politicians. In fact, it is fast becoming a way to further lower the credentials of politicians by accusing them of having been criminal defense attorneys.

The latest faux-scandal surrounding Hillary Clinton is but one example. Clinton once represented a man accused of having sex with an underage girl after plying her with alcohol. If true, to be sure, that crime is reprehensible. But the complaint is that Clinton did her job too well: She questioned the believability of the girl and sought to explore previous false allegations she may have made. Her client did, indeed, plead guilty, but to a reduced charge. In an audio recording, Clinton suggested she knew her client was guilty, and that seems to have sparked tremendous outrage among those who wish to use these things to their political advantage.

I'm going to let you in on a secret: Most criminal defense attorneys represent clients who we "know" to be guilty. We do it anyway because whether we "know" that a client is guilty isn't relevant to our jobs.

First, let's state the obvious: you only know something for certain if you were there and observed it first-hand. Everything else is second-hand information that can be unreliable. But those are just semantics, you say, and you would be correct. In a vast majority of cases, we all have a good sense of whether the client is guilty of something. But that doesn't matter either.

What I think or feel or can guess is irrelevant. It isn't my job to prove that the accused has committed the crime. That's the prosecution's job. So we defense lawyers always talk in terms of what the prosecution can prove. That's a constitutional right and it applies to you and to me.

Let's imagine the alternative: a world where there are no defense lawyers to challenge the proof. What then separates an accusation from guilt? It is the prosecution who brings charges against an individual. If there is no one to stand and challenge that accusation, then doesn't the accusation itself equate to proof of guilt?

Another complaint seems to be that the guilty often get away on technicalities, or that victims are treated harshly by having their truth and veracity questioned. This line of thinking seems again to deem the defense superfluous.

The underlying principle seems to be that anyone who is arrested is guilty, or, alternatively, that some types of accusations must always be believed.

The obvious flaws in the former are laid bare by the scores of wrongful convictions that have come to light over the past few decades.

The latter belief—that some types of accusations are always truthful—is just as wrong, but far more difficult to dislodge because it is rooted in emotion. This almost always arises in cases of sexual assault, involving either adults or minors.

This approach, of course, begs the question. The accusation must be believed, therefore the accused is automatically guilty. If the accused is automatically guilty by virtue of the accusation, then the defender of the accused is the defender of the guilty, and those who defend the guilty are nothing but scum.

What to make, then, of those cases involving sexual assault that are tried to a jury and a jury returns a verdict of not guilty? Has the accusation been proven untrue or has there been a miscarriage of justice? Does the vitriol turn to the prosecution for nearly imprisoning an innocent man? Are they vilified for being persecutors of innocence? Of course not. This seems to be a shortcoming in our national discourse. Aided by the likes of cable commentator Nancy Grace, we have moved toward a black-and-white, infantile, speak-by-shouting method of communication, wherein the sensationalism of the accusation always triumphs over cool, detached logic.

There is, however, another reason to discard the simplistic view of defense attorneys as guardians of scum.

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