COUNSEL: ROLE OF COUNSEL

In the eyes of many people, the criminal defense lawyer (defense counsel, or defender, for short) represents all that is best about the legal profession; in the eyes of others, all that is worst. Defense counsel is the innocent defendant's last refuge against the horror of wrongful conviction—or, as lawyers sometimes say in their hyperbolic fashion, the defender is the only friend that an accused person has left in the world. Defense counsel is also the guilty defendant's chief instrument for defeating justice and getting away with crime. Paradoxically, the defender is at once the indispensable condition for justice and the enemy of justice. The trait on which defenders most pride themselves—a fierce, undivided loyalty to the client—seems to many people a virtue, while to others it is a vice. Heightening the paradox is the fact that the better a legal system is—the fewer wrongful arrests and prosecutions it engages in—the more often the defender will be working to exonerate the guilty. Although a vigorous, independent defense bar is often thought to be a sign of a first-rate legal system, improving the legal system inevitably makes the defender's role more morally problematic.

The classic statement of the defender's ethical outlook was offered in 1820 by a British barrister, Lord Henry Brougham: "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion" (Nightingale, p. 8). Brougham's credo displays both sides of the dilemma. On the one hand, it eloquently extols the loyalty and personal courage that a defender must possess to represent someone accused of wrongdoing and perhaps despised by the entire community. On the other hand, it states plainly that defenders will discount to zero the alarm, torments, and destruction that they may bring on the community, a position that seems hard to justify on any plausible theory of morality.

The moral basis of defense counsel

Why should the role of defense counsel exist in the first place? If this question seems peculiar, it is only because the moral assumptions built into the defender's role are taken for granted in modern societies. Chief among these assumptions is a particular horror at the prospect of condemning the innocent—a horror that goes back as far as the Hebrew Bible (Genesis 18:29–32). A society that placed higher importance on convicting the guilty than on acquitting the innocent would eliminate defense counsel from its criminal justice system. Modern societies instead profess belief in the old slogan that it is better that ten guilty criminals escape than that one innocent person be wrongfully convicted.

The reasons for this repugnance at convicting the innocent are straightforward. First, criminal law is usually enforced through corporal punishment—imprisonment, and in some legal systems flogging, mutilation, or even death. Second, criminal conviction carries with it the stigma of moral condemnation. Third, criminal litigation pits the defendant against the state: cases bear names like People v. X, the Crown v. Y, and State v. Z. Within liberal polities, at any rate, the danger that state power will be abused by those who wield it is thought to warrant special precautions—not just the protection of individual rights against the state, but in some cases the overprotection of those rights. Thus, liberal polities always grant the presumption of innocence, so that the state always bears the burden of proof in criminal cases. The special horror at convicting the innocent explains why in many societies criminal conviction requires proof beyond a reasonable doubt rather than some lesser standard. And prominent among the safeguards against wrongful conviction is the right to defense counsel.

A more subtle moral assumption behind the defender's role is this: any decent legal system must presume that the accused person has a good-faith story to tell, a defense to offer. A society which respects the human dignity of its inhabitants withholds its verdict in abeyance until the defendant's side of the story has been heard—even in an open-and-shut case such as the knife-point rapist caught in the very act (Donagan, pp. 128–33). Once society presumes that defendants have good-faith stories to tell, fairness requires that the ability of defendants to tell their stories should not be undercut merely because they may be uneducated, ignorant of the law, poor public speakers, or unintelligent. They must be provided an advocate—a "mouthpiece" in a nonpejorative sense of the word—who can help them tell their stories, just as non-native speakers must be provided with translators at their trials.

Of course, nothing in these arguments implies that the defender must be a partisan advocate. Perhaps the prosecutor could be required to present the accused's side of the story along with the state's version; or perhaps the judge could assume the burden of defense. Experience, however, teaches that systems designed along these lines fail. For centuries, English felony defendants were prohibited from employing defense counsel, on the theory that the court would look out for the defendant's interests and that partisan defense counsel would merely muddy the waters. Instead of safeguarding defendants, however, judges often joined with prosecutors in reviling defendants to their faces, and this was one reason for the Prisoners' Counsel Bill of 1836, which established the right to defense counsel (Mellinkoff ). Likewise, American prosecutors are required by their ethics codes to seek justice, not victory—but before the right to counsel was granted in 1963, defenderless trials often led to convictions based on evidence so flimsy that any competent defender would have demolished it; and prosecutors routinely sought victory without worrying overmuch about justice. It seems, then, that to be effective the defender's loyalty must be undivided, just as Lord Brougham suggested; and, if it is undivided, the moral ambiguities of the role emerge fully.

Defending the guilty

The dilemma is at its most intense when the client is guilty, for then the lawyer seems not much different from the driver of a getaway car: both aim to help the criminal escape just punishment for his crime. Morally if not legally, the defender becomes an accomplice in the criminal's escape.

Lawyers respond with several arguments about the importance of representing the guilty and, moreover, representing the guilty as vigorously as the innocent. Each of these arguments has force, but each is open to criticism.

The adversary system. The system of criminal justice, which pits prosecution against defense, requires undivided partisanship. Because the prosecutor will present the state's case, the defender must concentrate entirely on the accused's, and present it as forcefully as possible. A corollary to this principle of partisanship is that the lawyer should not be held morally accountable for zealously defending the client; otherwise, moral compunctions might compel defenders to restrain their zeal, in violation of the principle of partisanship. Taken together, the principles of partisanship and nonaccountability are thought by many to define the advocate's role (Luban, 1988; Schwartz; Simon, 1978).

This argument grounds the defender's ethic of partisan zeal in the nature of the adversary system (see Freedman's 1975 work for a classic statement of this argument). However, the adversary system has often been criticized on the ground that it turns the system of legal justice into a contest of skill and resources and encourages amoral ruthlessness on the part of prosecutors and defenders alike. That is, the very system that is supposed to justify partisan zeal can be criticized precisely on the ground that it encourages too much partisan zeal. In this way, the argument based on the adversary system begs the question of how partisan a defender should be. In addition, the argument based on the adversary system may apply with less force to legal cultures with different procedural systems.

Another version of the argument focuses on liberal fear of the state. It seems too unfair to pit the might of the state against a solitary defendant, even a guilty one, without providing the defendant with a champion (Luban, 1993). Critics, however, point out that criminals seldom if ever face "the bogey of the state"; in reality, they are pitted against "a small number of harassed, overworked bureaucrats" (Simon, 1998, p. 174), and there is little reason to suppose that "the state" poses a greater threat to the public than do the criminals it prosecutes.

Usurping the court's role. A defender who refuses to defend the guilty, or offers a less vigorous defense, has substituted his or her own judgment that the client is guilty for the verdict of the judge or jury. Not only does this violate the trial's division of labor, it denies the defendant the due process that trials are meant to provide by, in effect, convicting the defendant before the trial. Sometimes this argument is phrased as a point about the nature of truth in law: when Boswell asked Dr. Johnson how he could represent a cause known to be bad, Johnson replied, "Sir, you do not know it to be good or bad till the Judge determines it."

Skeptics may reply that the defender is not literally substituting his or her judgment for that of the judge and jury, because the defender is not rendering a legal verdict on the defendant. The defender is merely deciding how vigorously to defend based on what he or she knows of the client's guilt or innocence. As for Johnson's argument that the lawyer cannot "know" the client is guilty, it rests on a play on words. If Johnson meant that only the judge is authorized to establish forensic facts, he was wrong to couch the point in terms of knowledge rather than authority; if he meant that lawyers can never know more than judges about a case, he was simply mistaken.

The political activist's reason. Many defenders view their job as fighting for society's outcasts and underdogs. Violent criminals have themselves often grown up as victims of violence and oppression; the criminal justice system operates in a racist manner; criminal sentences are often savagely harsh; and conditions of imprisonment in many jurisdictions are inhuman. For these reasons, as one writer puts it, "A lawyer performs good work when he helps to prevent the imprisonment of the poor, the outcast, and minorities in shameful conditions" (Babcock, p. 177).

Here too, the argument, strong as it is, is open to doubt. It does not apply to prosperous white-collar criminals, racial-majority defendants, or those whose punishments are not excessively harsh. More importantly, the argument glosses over the fact of guilt, including the legitimate interests of past and potential crime victims in having dangerous criminals isolated from society. Victims too have rights, and often the victims of crimes are themselves the poor, the outcast, and minorities in shameful conditions (Simon, 1998).

Making the screens work. Only when the defense bar makes a practice of vigorously challenging prosecutors, even in cases where the defendant is guilty, will prosecutors and judges take precautions to ensure that only valid cases, backed by solid evidence, are brought. The aggressive defender disciplines the prosecutors, making them do their jobs, and thus, "by defending the guilty, the defense attorney protects the freedom of the innocent" (Mitchell, p. 320; see Kaplan, pp. 231–232). To this argument, one critic responds by asking whether vigorously challenging prosecutors includes misleading them and the court, as vigorous partisan advocacy may require when the defendant is guilty. If so, then it seems less plausible that vigorous defense "makes the screens work" than that vigorous defense makes the system fail (Simon, 1998, pp. 178–179).

One other version of this argument seems valid and uncontroversial, however. Prosecutors often charge defendants with multiple crimes, or choose the most serious among several possibilities in the statute book. One crucial role the defender plays is to keep the prosecution honest by resisting overcharging, or by arguing vigorously that the facts support only a less serious crime (manslaughter rather than murder, for example). Likewise, when prosecutors press for the harshest sentence, the defender highlights facts that point toward leniency. Without the defender, prosecutors have little incentive to be careful in their charging decisions and sentencing recommendations.

Confidentiality and zeal. Recall that in liberal polities, respect for human dignity requires a defender to present the defendant's good-faith story as the defendant would if he or she was knowledgeable about the law and skilled at public speaking. The defender cannot present the client's story, however, unless the defendant can tell the defender the facts of the case, and defendants will not do this unless they believe they can do it safely. That is the root justification of confidentiality: lawyers must keep client confidences to encourage clients to tell them everything they need to present the case. Some argue that this policy behind confidentiality is so strong that clients must be assured that what they tell their lawyers will never work to their disadvantage. For that reason, counsel cannot curtail vigorous defense merely because the client has admitted guilt.

The implications of this argument are farreaching, and, it may prove, too much so. It means, to take a characteristic ethical problem facing defenders, that a defender must treat the client's perjurious testimony as if it was true, because otherwise the client's confidences about the actual facts will be used to the client's disadvantage (Freedman, 1966, 1975). This conclusion, however, is not commonly accepted by legal professions anywhere in the world. American ethics rules, like those in many countries, typically require defenders to inform courts about client perjury, and never permit defenders to argue perjurious testimony as if it were true. True, this rule forces clients to choose between concealing facts from their defenders—thereby running the risk of inadequate defense—or confiding in the defenders but giving up the opportunity to commit perjury. In that case, the defender is not presenting the client's fabricated story as the defendant would; but respecting the client's human dignity requires only that the client be allowed to present a good-faith defense through the lips of the defender, not a fabricated one. It follows that the argument that confiding in the defender must never be permitted to harm the client is too strong: client confidences must never be used to harm the client's good-faith defense, but if the client's defense is not in good faith, defenders should not offer it, even if the result harms the client.

Defense counsel's battle against truth

It seems likely that popular revulsion to the defense counsel arises partly from a kind of irrational transference—a projection of revulsion for the client onto the client's lawyer. It has another, more rational, source as well, however. That is the concern, dating back to Plato, that lawyers win cases by perverting the truth. When clients are guilty, how can it be otherwise? If the client is guilty, the defender labors mightily to keep damning evidence away from the judge or jury. The defender tries to discredit opposing witnesses, often by making them seem like liars or fools, even when the defender knows that they are telling the truth. In addition, the defender will try to sell the judge or jury on some alternative story that—supposing the client is guilty—is false: that the robber was elsewhere at the time, or that the rape victim consented to sex, or that the police planted the incriminating evidence, or that the killer was acting in self-defense. In the extreme case, the defender will try to pin the blame on someone else, combining the injustice of freeing the guilty with the far greater injustice of framing the innocent.

Defenders justify these practices by reminding us that the prosecution bears the burden of proving each and every element of a crime beyond a reasonable doubt. When defenders brutally cross-examine truthful prosecution witnesses, their purpose is to expose reasonable doubts a judge or jury might entertain about the witnesses' testimony, including truthful testimony. After all, if the witness lacks credibility, a conscientious jury should find reasonable doubt even if the witness happens to be telling the truth. Similarly, when the defender vigorously argues that the evidence supports an alternative story, even one that the defender knows is false, the argument is a valid tactic because it raises reasonable doubts about the prosecution's case. Jurors will never find reasonable doubt if the defender merely argues the abstract possibility of doubt; that is why defenders argue concrete alternative stories—not because they are true, but because they are consistent with the evidence and reasonably plausible, which should suffice for acquittal. Of course, the defender will not explicitly say, "My client's alibi may not be true, but on this evidence it could very well be true": such an admission would cause jurors to discount the alibi and convict even in the face of reasonable doubt. The defender will behave as though the alibi is true, because that is the only way to ensure that jurors vividly perceive that there are reasonable doubts about the prosecution's case. The defender's battle against truth is part of a larger war for justice.

There is much to be said for this argument. However, it fails to justify some of the defender's favorite tactics.

Misleading investigators and prosecutors. Particularly in the defense of white-collar crime, where arrest and indictment are typically preceded by lengthy investigation, defenders devote most of their efforts to forestalling the indictment. Defenders will caution potential witnesses that cooperating with prosecutors may be bad for their business careers. They will try to coordinate the stories of all the targets of investigation, and persuade them to stonewall investigators. Avoiding overt lies, defenders will shower prosecutors with half-truths to throw them off the track. And, in order to avoid being put in the position of lying to prosecutors, they will intentionally refrain from asking their clients questions when hearing the "wrong" answers would prevent them from arguing a plausible falsehood (Mann, 1985). None of these tactics can plausibly be described as merely testing the prosecution's case by raising reasonable doubts. They are attempts to prevent the prosecution from assembling a case in the first place.

Undermining the fairness of the forum. Where it is possible, defenders will "forum shop" for a venue with favorable jury demographics. They will try to disqualify any juror whom they suspect will be skeptical of their defense. And they will energetically seek to delay trials so that witnesses have time to forget details, leave town, or die. (It should not be forgotten, however, that prosecutors also have a formidable repertoire of dirty tricks, and defenders argue that they are merely fighting fire with fire.)

Playing to bias and emotion. The defender will make sure that the accused arrives for trial neatly coiffed, cleanly shaven, and dressed in a suit and tie (which actually may belong to the defender); the defendant's sweet, sorrowful wife and adorable children will be arrayed behind him, even if in reality he deserted them months before. The exploitation of appearance and manipulation of emotion have always been the defender's stock in trade. When Phryne, the most famous and beautiful courtesan in classical Athens, was tried for impiety, her defense counsel Hyperides delivered the greatest oration of his life. But, observing that the jury remained unmoved, Hyperides dramatically bared Phryne's breasts and secured her acquittal by telling the Athenians that it would be sacrilegious to condemn Aphrodite's own representative among mortals (Davidson, p. 134). Today, mafia lawyers borrow stirring paragraphs from the speeches of Martin Luther King to defend charismatic but murderous dons, and demagogic defenders play the "race card" to secure acquittals in racially charged cases (Dannen). Two thousand years ago, Plato's Apology and Gorgias criticized trials and lawyers for substituting emotionalism and sentiment for truth, and today as in Plato's time this criticism remains fundamental.

Who calls the shots?

Recall that the standard conception of the advocate's role combines a principle of partisanship with a principle of moral nonaccountability, according to which the advocate bears no moral responsibility for lawful actions taken on the client's behalf. This principle flows from the legal understanding that the lawyer is the client's agent or servant, that is, that the client is the primary decision-maker and the lawyer merely executes the client's decisions. In fact, however, everyone recognizes that the description of a client-principal directing a lawyer-agent represents little more than a legal fiction.

In the United States, even the formal rules of legal ethics allocate virtually all tactical decision-making to the lawyer, not the client. The client certainly chooses the ends of representation. The client also has a constitutional right to testify even if his defender objects. Finally, the client chooses how to plead, and thus whether to accept a negotiated plea. Apart from these limitations, however, the defender makes the remaining choices. Yet, although the lawyer must consult with the client about the means, lawyers need not abide by clients' tactical preferences. The lawyer decides which witnesses to call, what theory of the case to offer, and what strategy to pursue. In reality, then, the client probably possesses even less autonomy than the rules envisage: defenders can and do present options to their clients in a way so skewed that the client will choose what the defender wants him to choose. Defenders justify such overbearing behavior by insisting that clients are often foolish and that lawyers know better than clients what is in the client's best interests. Often, perhaps, the defenders are right.

However, it is important to realize that the more defenders become the real decision-makers in their clients' cases, the more accountable they are for the choices they make. In addition, overriding their clients' preference raises the important issue of how much paternalism can be justified in the lawyer-client relationship.

The unsung problem: indifferent defense

The preceding discussion has centered on the moral problems of zealous defense that spares nothing and no one in pursuit of victory. While these are central to understanding the defender's role, it would be irresponsible to conclude without noting that they form only a small part of the landscape of criminal defense. In reality, very few criminal defendants are fortunate enough to have a defender who fits the excessive-zeal picture. In the United States, three-fourths of all criminal defendants are indigent, represented either by overworked public defenders or by private counsel paid bargain-basement fees by the state. The result is perfunctory defense, little or no fact investigation, and quick negotiated pleas—"meet 'em, greet 'em, plead 'em," as observers describe the typical lawyer-client interaction. One study in New York City found that private counsel for indigent defendants interviewed prosecution witnesses in fewer than 5 percent of their felony cases, and other studies reveal equally shocking lapses (Luban, 1993). In practical terms, the greatest moral problem of criminal defense is not excessive zeal, but incompetence and indifference. For these lead to the kind of bureaucratic mass-processing of faceless, interchangeable defendants that the defense counsel's role as champion of individual dignity was supposed to counteract.

David Luban

See also Adversary System; Careers in Criminal Justice: Law; Confessions; Counsel: Right to Counsel; Criminal Justice Process; Guilty Plea: Accepting the Plea; Guilty Plea: Plea Bargaining; Sentencing: Procedural Protection; Trial, Criminal.

BIBLIOGRAPHY

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——. "Are Criminal Defenders Different?" Michigan Law Review 91 (1993): 1729–1766.

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