Right to Counsel

In my February 28, 2010 posting “TORTURE MEMOS”, I suggested that lawyers that work only for various government departments could develop “tunnel vision”, and be lacking in ability to understand and properly evaluate both sides of a legal issue. That vision impairment obviously reaches beyond the family of government lawyers, based on the recent issue raised by a private interest group that suggests that lawyers that have defended terrorists are in some way less than trustworthy and should be more closely scrutinized before being allowed to work for certain government departments, especially the Justice Department.


The suspicion generated by this type of representation reflects an ignorance of the duties of a trial lawyer. The rules of professional conduct strongly urge, in some cases mandate, that competent lawyers defend unpopular--even despised and detested--defendants when charged with a crime, no matter the repugnancy of the crime. This representation does not signal that the lawyer is in sympathy with the conduct of the defendant, only that the lawyer will insure that the defendant is accorded due process, and the equal protection of the law. That is, he will put the government to its proof, and require that government adhere to the Constitution in their prosecutions. In the end, that protects all of us.

To the enlightened public an American lawyer defending a terrorist is no different than an American doctor treating the wounds of an enemy combatant on the battlefield or in a field hospital; no different than a doctor treating the wounds of an accused “cop killer” that is brought to the hospital.

There are occasions when it causes some degree of “heartburn” to “walk the walk”. I recall early in my legal career when waiting to commence a trial in a neighboring city, and sitting in the courtroom of a particularly stern judge, when two defendants charged with homosexual sodomy (when still a felony in California) were before the court. The defendants claimed that they could not get lawyers to defend them. They each supplied a list to the court of the lawyers that they had contacted attempting to get representation---without success. The judge then looked at me and the other lawyer that was my opponent in the upcoming trial, pointed to us, and informed the defendants that we were ordered to represent them. The court then proceeded to lecture the lawyers in the courtroom for not defending people charged with crimes such as these.

The court then spoke to the other lawyer and me in his chambers and told us that if we felt that it would have a substantial negative effect on our practices that he would relieve us of the order. We both swallowed and agreed to the representation. Fortunately for me, when the article about the case came out in the newspaper of the city where the case was pending it didn’t affect me, but the other lawyer was from that city, he later told me that he did lose a few clients over the representation in the sodomy case. The point is that none of us know when we might be charged with a crime that is especially repugnant to the community and when we might need the help of a competent lawyer.

The “tunnel vision” mentioned above also occurs when a lawyer that only represents, contemplates and understands, the prosecution side of a case, also tends to look at the prosecution “team” as the “white hats” and the defense “team” as the “black hats”. In my forty odd years of trying lawsuits, both civil and criminal, (largely civil) I have had many police officers tell me (off the record) that they lied during their testimony, and the prosecutor was either aware of, or encouraged, the lies. I also recall a judge instructing a deputy district attorney, “never bring another case into my courtroom where Sergeant Doe (fictitious name) is the investigating officer, because he doesn’t know the difference between a truth and a lie, and I don’t believe a word he says”. Truth and Justice do not just reside on one side of the courtroom.