Hypothetical S.O.B. Clients and The Constitution
By Ken K. Gourdin
This piece was inspired by Model Rule of Professional Conduct 3.1 of the ethical rules for lawyers. (Yes, there are such things as ethical rules for lawyers!) Perhaps it can be considered a follow-up to “The Ethics of Zealous Defense,” which can be found here (last accessed today), because the two posts deal with essentially the same subject:
The aforementioned rule states that a lawyer may hold his opponent to every element of proof required to sustain a criminal charge or a civil complaint. That is, if the criminal code (for example) says that a person is guilty of a crime if he does “a,” “b,” “c,” and “d,” but I, as the person’s defense attorney, in good conscience and good faith, believe my client only did “a,” “b,” and “c,” I am perfectly free to argue that the prosecution cannot (or did not) prove that my client committed the crime charged because my client did not do “d”—or that the prosecution cannot prove that my client did “d.”
Consider the following hypothetical. (Having sat through several years of hypotheticals in law school, I have been waiting with ‘bated breath, on the edge of my seat, for years, to inflict a hypothetical upon someone else, and now’s my chance!) My client is an S.O.B. Everybody in the community hates him. The crime with which he has been charged sounds just like something he would do, and everybody in the community knows it. Does my client have the right to expect that I will represent him as zealously as possible within the bounds of law and ethics? Yes. Does he have the right to expect that I will do anything that is not illegal or unethical to impeach any witnesses against him and otherwise to raise reasonable doubt in jurors’ minds? Yes. Does he have the right to expect that I will hold the prosecution responsible for proving every element of the crime with which he has been charged, and that I will do everything legally and ethically possible to ensure that the prosecution does so? Yes.
You and I might never need many of the protections that the Constitution guarantees my client—the Fourth Amendment’s guarantee against unreasonable searches and seizures; the Fifth Amendment’s right to due process and protection against self-incrimination; the Sixth Amendment’s right to a trial by a jury of one’s peers; the Eighth Amendment’s protection against cruel and unusual punishment, and other provisions. If we’re largely law abiding and if we’re never accused of a crime, we’ll never need any of these things. But these provisions weren’t written for you and me: they were written for people such as my client. He’s the one who needs them. And he needs me, a judge, and possibly a jury to ensure that he gets the protection they’re intended to provide.
The Constitution—or at least, the provisions I have mentioned—wasn’t written for people like you and me, who are largely law-abiding and might never be arrested or accused of a crime. It was written for people like my client, whose neighbors and acquaintances all “know” is guilty because . . . well, the crime of which he stands accused seems like just the kind of thing he would do. And if you wonder how it is that I possibly could defend someone like my client (who everyone knows is a reprehensible S.O.B.) and still sleep at night, I can do that because the law (including the Constitution) and the ethics of my profession say I can. Sometimes the law isn’t intended to protect only the ones who don’t break it; sometimes, it’s even intended to protect those who do.
To sum up, I might tell a jury (at least if I were defending a “hopeless” client with a lousy reputation in the community), “Ladies and gentlemen of the jury, don’t convict my client simply because he’s an S.O.B., and because everyone who knows him thinks that what he stands accused of seems exactly like something he would do. If you’re going to convict him, convict him because you’re convinced beyond a reasonable doubt that he actually did what he’s been accused of. Make the prosecution carry its burden of successfully proving every single element of the crime or crimes with which my client has been charged. And if you were my client, you would have every right to expect me to do for you exactly what I’m going to do for him. In fact, the ethics of my profession demand it. And not only do the ethics of my profession demand it, the Constitution does, as well.”
All of this may sound like nothing more than typical legal and ethical hairsplitting for which lawyers are famous—until you are the person the lawyer’s defending. At that point, it may become the difference between freedom—and life behind bars. It’s easy to excoriate lawyers for this kind of thing; as one of the more pro-police pro-prosecution people whose blog you may (n)ever read, I’ve done it myself. But I return to the point with which I ended the preceding paragraph: Hypothetically, how can I sleep at night after I’ve hypothetically defended a hypothetical S.O.B. like my hypothetical client? Because the ethics of my profession (not to mention the Constitution) say I can—and there’s nothing hypothetical about that.
This is where “the rubber meets the road” and where we have to decide: Do we simply pay lip service to the proposition that it’s better for a hundred guilty men to go free than for one innocent man to be convicted—or do we really mean it? If we really mean it, then we cannot allow prosecutors simply to go through the motions: their feet must be held to the fire and they should be required to prove every element of every crime they charge.