The Ethics of Zealous Defense: A Few Thoughts of an Aspiring Prosecutor Regarding the Proper Role of His Esteemed Would-Be Colleague-Opponents at the Defense Bar
By Ken K. Gourdin
Author’s Note: The following was posted today at Mormon Dialogue and Discussion Board in response to a question whether someone who uses “loopholes” in the law to achieve a desired result can still claim to be honest in all his dealings with his fellowmen. While the question was asked in a general context, I, following the first rule of good writing (that one should write what one knows) used a so-called “loophole” in the criminal law to illustrate my reasoning.
In criminal law, the exclusionary rule says, generally, that illegally-obtained evidence cannot be used against someone in a criminal prosecution, even if that evidence is relevant and material. The ethics of my profession indicate that I must zealously defend my client no matter how I feel about him or about the crime with which he is charged. If I fail to do so I have breached the ethics of my profession, and my (former) client may appeal any conviction on the basis of ineffective assistance of counsel. If I believe there is good evidence that my client is guilty beyond a reasonable doubt, may I, in good conscience, still defend him? May I seek to have illegally-obtained evidence, which likely would convict my client if a trier of fact (a judge or a jury) were to consider that evidence, suppressed on the basis that the evidence was illegally obtained, even if my efforts likely would result in his acquittal? I believe the answer to all of these questions is, “Yes.”
Some (perhaps many) people think that the exclusionary rule is merely a loophole, and that lawyers ought not defend people they believe would (should, but for the lawyer’s assistance) be convicted. But I wonder, how many people would receive the fair trial and the effective assistance to counsel to which the Constitution says they are entitled if lawyers were to act according to that reasoning? Not many; indeed, I wonder if any would. Members of the defense bar see themselves as upholding the constitutional tradition. As much as I might disagree with a defense lawyer’s strategies or tactics in any given case, or with his characterization of his opponents, as long as his actions are ethical, I can’t disagree with his assessment of the nobility of his role in the system. And I say that as one of the most pro-police, pro-prosecution people on this Board. If and when I ever become a prosecutor, I don’t want to win simply because my opponent does a (forgive the expression!) h@lf-@$$ed job of defending his client. Under those circumstances, even if I were to win the trial “battle,” I would still lose the appellate “war.”
How does anyone sleep at night knowing that he defended (perhaps successfully) someone who actually was guilty by exploiting one or more “loopholes” in the law, such as the exclusionary rule? The simple answer (provided he acted ethically in doing so) is, because the Constitution and the law say he can. That is not to say that anything that is legal also is right, but a lawyer’s first duty, provided no other ethical considerations rightfully intrude, is to his client, and his next duty is to the ethics of his profession—even if those ethics produce what some might consider an undesirable result.