Wednesday, April 23, 2014

Justice For All? Despised Defendants Need Zealous Advocates

"Is Atticus Finch's courage only virtuous because we all end up liking and believing in Tom Robinson?"  --  Prof. Lawrence Marshall

The popular version of the heroic criminal defense lawyer is one who tirelessly defends the wrongly accused, saving a client who is more victim himself (or herself) than perpetrator.  In real life, defense lawyers are usually called upon to represent the guilty, to provide a vigorous defense for those who have committed despicable acts.  This is a far more heroic calling. Indeed, it is critically necessary to our system of justice to have dedicated, skillful advocates representing people who are hated and feared, and ensuring that the government is following the law.

As an attorney representing death row inmates for close to 25 years, I have witnessed -- literally -- the dreadful consequences of trial lawyers providing tepid representation.  A recent Mother Jones article provides a disturbing top ten list of "lawyers who were drunk or sleeping during trials, who demeaned their clients in front of the jury, who missed key deadlines or used a 'one brief fits all' appeals format."  The result, as legendary lawyer Stephen Bright once observed, is that those with the worst lawyers not those who committed the worst crimes end up on death row.  Justice Ruth Bader Ginzburg agreed, stating a dozen years ago that, "People who are well represented at trial do not get the death penalty."

Unfortunately, it is becoming  all too common that the zealous lawyers who take on the cases of notorious clients are themselves targeted.  As Dalia Lithwick put it, "[o]nce upon a time in America this was called advocating for justice. But in today’s America, it’s deemed a miscarriage of justice."

A few years ago, Liz Cheney and her group, Keep America Safe, launched a smear campaign against lawyers in Obama's Justice Department, referring to them as the "Al Qaeda 7," for previously having represented Guantanamo detainees.  A group of former Bush Administration officials and other prominent lawyers shot back, publishing a letter condemning Liz Cheney's ad as shameful.  They rightfully stressed that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."

Next, the ACLU and CCR (Center for Constitutional Rights) were chastised for representing (the now deceased) Anwar al-Awlaki.  The Obama Administration had authorized the killing of Awlaki, an American-born cleric tied to Al Qaeda and allegedly hiding in Yemen at that time.  A lawsuit brought by Awlaki’s father, who was represented by the ACLU and CCR, challenged “whether the government has the power to kill any American citizen it labels as a terrorist without review by the courts.”  This did not “cross the line” as Andrew Sullivan asserted.  Indeed, as Glenn Greewald passionately argued:  "How could it ever 'cross a line' for a civil liberties lawyer to represent an American citizen in an American court arguing that the Government is transgressing the limits of the U.S. Constitution?  The only thing that crosses a line is to insinuate that there's something improper about that."  (Awlaki was later killed in a September 30, 211 drone attack.  But thanks to more honorable lawyering by the ACLU, a federal appeals court has just ordered the Justice Department to release portions of a memo providing the ostensible legal justification for this targeted killing of a U.S. citizen.)

Recently, the United States Senate voted to reject Depo Adegbile, an otherwise sterling choice to run the Civil Rights Division of the Justice Department, because he headed the NAACP Legal Defense and Education Fund when it represented Mumia Abu-Jamal, sentenced to death for killing a police officer, in his successful fight for life.  (Abu-Jamal is now serving a life without possibility of parole sentence.)

Pennsylvania Democrat, Bob Casey paid lip service to “respect[ing] that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime" but added the disturbing non sequitur that "it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed.”  Casey added that “The vicious murder of Officer Faulkner in the line of duty and the events that followed in the 30 years since his death have left open wounds for Maureen Faulkner and her family as well as the City of Philadelphia."  Republican Senator Lindsay Graham, defending Adegbile's rejection by the Senate, was more direct:  “When someone has a history of helping cop-killers, this is what happens.”

And the latest attack on attorneys who have the audacity to provide representation guaranteed by the Sixth Amendment to criminal defendants is a remarkably offensive campaign ad sponsored by the Republican Governors Association (RGA), entitled "Vincent Sheehan Protects Criminals, Not South Carolina." Sheehan is running for Governor against Republican incumbent, Nikki Haley.  He is described in the ad  as "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."  Indeed, he was actually paid for defending “violent criminals who abused women.”   As Ed Kilgore puts it, this ad sets a "new standard for immoral cynicism."  (Steve Benen points out that Chris Christie, the current head of the RGA, who has hired defense attorneys of his own recently, should have a better understanding of the importance of the right to counsel.)

So there you  have it.  While it might be important for our legal system to ensure that all criminal defendants have effective advocates, a lawyer's representation of a particularly despicable client accused of a particularly despicable crime is apparently a disqualifying factor for public office.  If, as Lindsay Graham says, "this is what happens" when a lawyer helps a "cop-killer" or any other unpopular client, our system of justice is in peril.

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