Question about defense attorneys
April 14, 2010 3:44 PM   Subscribe

Why do defense attorneys defend those who are clearly guilty? Do they have no conscience? Do they do it for fame? Do they do it for the easy money (will get paid even though the verdict will definitely be guilty)?
posted by abbat to Society & Culture (49 answers total) 4 users marked this as a favorite
They believe in the core principles underlying the adversarial system of justice.
posted by mr_roboto at 3:50 PM on April 14, 2010 [22 favorites]

If they're public defenders, it's because that's their job, and they believe that everyone deserves the best defense possible.

If they're private, then it's because that's their job, and they believe everyone deserves the best defense possible, and also maybe for money and/or fame.
posted by rtha at 3:50 PM on April 14, 2010 [8 favorites]


Everyone has a right to a defense. The lawyer presents the best defense possible, without caring or maybe without even knowing if the person did it or not. This is called an "Adversarial system" - prosecutor and defense are adversaries, each trying to present the best possible case for their client. Without a defense for everyone, the entire system would crumble. We'd have to rely on the good faith of prosecutors to never stretch the facts or prosecute someone who might not be guilty. That's a quick path to a scary scary country where anyone who the government doesn't like for any reason ends up in jail.

(Suggested follow-up question: Why do prosecutors prosecute, send to jail, and ruin the lives of those who are clearly innocent?)
posted by drjimmy11 at 3:54 PM on April 14, 2010 [58 favorites]

They do it for a variety of reasons, including, yes, venal ones like money or fame.

It is, however, important to note as well that many of them do it because they believe very strongly in a legal system (U.S., Canadian, whatever) that guarantees legal counsel to all who are accused of a crime, regardless of guilt or innocence.

Even the guilty have rights. As they ought to. And some attorneys (many of whom, at least in the US, make very little money as public defenders) very strongly about that.
posted by Nothing... and like it at 3:56 PM on April 14, 2010

I would not call criminal defense of anyone, and certainly not of someone who is actually guilty, "easy money."
posted by devinemissk at 3:56 PM on April 14, 2010 [10 favorites]

The U.S. justice system is adversarial. Even someone who is "clearly guilty" (defining exactly what that means is a discussion unto itself) deserves representation, even if only to ensure that the state follows all the rules and doesn't cut any corners.

And in a lot of cases where factual guilt is pretty clearly established (say your average DUI case), the defense attorney's job is basically making sure that the procedure is followed, and acting as an advocate on behalf of their client and negotiating the best outcome possible within the bounds of the law.

Despite having a bad reputation (although not as bad as plaintiffs attorneys — the "ambulance chasers"), I think most defense attorneys find little conflict between their work and their conscience; all you need to accept is that making sure the system is fair, and that it works the way it was intended, is more important than locking up one particular bad guy. I.e., if the police really bone something up it's better to let the accused go, even if you think they're factually guilty, because in doing so you help to correct and keep the system working properly. (This is the exact opposite of what I've heard called the "rough justice" or "frontier justice" approach, which is what a lot of laypeople seem to believe in — that it doesn't matter how you get to the correct result as long as you get to the correct result. If this is your attitude, then certainly defense attorneys must be a strange bunch. But that's very much not how our justice system is supposed to work.)
posted by Kadin2048 at 3:57 PM on April 14, 2010

I think you're misunderstanding the role of attorneys in a lot of cases. Attorneys are advocates that attempt to get the best possible outcome for their client. Even when someone is guilty, and clearly so, there is a spectrum of results that could come of that. Which result that person faces is dependent on how that person's attorney defends them.

But you're also overlooking a lot of other factors. For example, the health and welfare of the CHARGED INDIVIDUAL is not only at stake. The health and welfare of our legal system and our society is. If a "clearly guilty" person's rights - such as the right to be free from illegal search and seizure - are violated, that hurts all of us. Because those are your rights too. And in order to protect those rights for all of us, we have to protect them even when they are violated for a really odious person.

Then you have a number of other issues, like the disparate impact that the criminal justice system still has on minority groups. Even when a person is clearly guilty, the problems with our criminal justice system raises questions for many people about why the law was crafted in such a way as to yield that guilt in the first place. Providing stringent defense for people who are routinely marginalized BY the criminal justice system provides one avenue to stop that cycle from taking hold in more people's lives.

Or perhaps the attorney is pro-life and is opposed to the death penalty. That attorney certainly has a conscience, but is opposed to a part of the criminal justice system that might otherwise come into play absent their intervention and advocacy.

And of course, those are only a few examples. It's a job. And everyone who does it does so for their own reasons.
posted by greekphilosophy at 3:57 PM on April 14, 2010 [6 favorites]

Because if the accused isn't provided a defense, then the whole system of justice collapses.
Remember that defending someone that you know is guilty doesn't always involve trying to trick the jury. It's more about making sure the defendant's rights are not violated by forcing the state to prove up its case.
If the state could just imprison those who are clearly guilty without the necessary proofs, pretty soon the whole system would be susceptible to the worst sins of a police state. You can see where it goes pretty quickly if those who are clearly guilty have no protection.
posted by mmf at 3:58 PM on April 14, 2010

Easy money? You have no idea.
posted by applemeat at 4:02 PM on April 14, 2010 [5 favorites]

A related question.
posted by selton at 4:06 PM on April 14, 2010

I have a friend who is a criminal defense attorney - it's NOT easy money - and she's not rolling in dough.
posted by The Light Fantastic at 4:11 PM on April 14, 2010

First, as pointed out, there is a constitutional right to an attorney. That doesn't explain, however, why someone would voluntarily step into that role. Let me explain.

Even if someone is clearly guilty, that does not mean that they deserve the death penalty for shoplifting a pack of gum. Obviously. So even if someone is guilty and wishes to admit their guilt, someone competent needs to be there to defend the person against an unjust sentence. Similarly, they may have shoplifted the pack of gum, but that doesn't mean the prosecutor can charge them with grand larceny. So as a defense attorney, you are keeping the prosecutor and the judge -- who, in the state system, are frequently elected officials trying to be popular with a public (and moneyed interests) demanding law and order-- from overreaching at the expense of your client. This is a good thing.

Other times, someone is completely guilty, but the police violated the constitution in discovering what they were up to. Some people, like my best friend's parents, call this "getting off on a technicality." Other people, like me, call it trying to preserve what's left of the individual's right to be free of unreasonable search and seizure under the Fourth Amendment. The rights of the innocent are vindicated on the backs of criminals. Me fighting about the police breaking down someone's door with no good reason when that person happens to be guarding a drug stash keeps those same police out of your house when you're not. This is also a good thing.

Other times, the person is clearly guilty, but is not a bad dude. For example, a client may have illegally reentered the country after doing something bad and getting deported, but he wasn't here to do something bad in 2010, he was working and paying taxes and trying to feed his family, who lives just across the border and can't eat because the Mexican economy is paralyzed by drug wars. If I can find a way so that he can get a lower sentence because he'll spend more time in prison than someone who killed someone, I feel pretty okay about that. If I can find a way to show that he's a derivative citizen so he has no conviction at all, that's even better.

Sometimes the client is clearly guilty and is a bad dude, but is convicted under some baloney law. I would give you the example of the honest services provision of the federal fraud laws that was recently examined by the Supreme Court. One can argue that depriving someone of "honest services" is unconstitutionally vague and really, prosecutors should use the tools they have to convict people who defraud others. It is fun to make these arguments, even for people you, OP, think are undeserving.

None of this is easy money.
posted by *s at 4:13 PM on April 14, 2010 [17 favorites]

Why do defense attorneys defend those who are clearly guilty?

If defense attorneys refused to defend such clients, then collectively they would be substituting their own judgement for that of judges and juries. Do you really want a judicial system where guilt and innocence is decided by the lawyers instead of the judicial system?
posted by Chocolate Pickle at 4:15 PM on April 14, 2010 [4 favorites]

A public defender friend of mine would say your question is flawed because very, very few defendants are "clearly guilty." Legal cases are not usually that simple. For example, even in the (rare) case that your client admits to killing someone, that fact does not mean your client is guilty of the charges brought against her (first-degree murder as opposed to manslaughter) and the things the police/prosecutor assert she did. Even if your client walks into your office and says "I committed first-degree murder," that does not mean her crime is heinous enough to qualify for the death penalty.

You might think it's bullshit, but I've had this discussion with my public defender friend many times, and he always says very vehemently that he's never had a client who is clearly guilty of the crime as charged, and he's been defending clients in a big city for a couple decades now.

Life is more like Rashomon than Law & Order.
posted by sallybrown at 4:16 PM on April 14, 2010 [12 favorites]

One possible analogous question might be, "Why does a doctor help a smoker/someone with a poor diet/someone who has a gunshot wound from a firefight they started/etc?"

As a doctor or a lawyer (or plumber, or teacher, or whatever) you enter another person's life at the point that you enter it. You can't change the past, you can only offer your particular skills and knowledge in the moment that you intersect with this other person. Inevitably, everyone will have limits about who they want to help, but there are no rules of where those limits lie that apply to everyone.
posted by serazin at 4:19 PM on April 14, 2010 [7 favorites]

Our laws are not always fair (for example, drug laws). I could be guilty of a crime and not be a bad person.
posted by amicamentis at 4:20 PM on April 14, 2010

Because, thank goodness, we live in a society where you are innocent until proven guilty. We have a justice system that believes people should not be prosecuted and punished without lawfully obtained, legally admissible evidence against them. A justice system that requires certain standards of proof, so that the witch hunts of olden days are not repeated. You may find this hard to swallow, but criminal defense lawyers play a vital role in maintaining the integrity of such a system.

If a criminal gets off on a technicality - say the evidence was obtained as the result of an improperly executed search - people always want to blame the defense lawyer. Oh those poor police, all their hard work wasted! That sleazy, scummy defense lawyer! I'm sorry, but that is incredibly backwards. The blame rests solely on the police for not doing their jobs correctly. And it has to be that way, because believe it or not, not even the police and prosecutors are all saints - the system must have checks and balances in place to keep these authorities honest and conscientious of how they do their jobs.
posted by keep it under cover at 4:23 PM on April 14, 2010 [1 favorite]

I used to work as an engineer, and part of our business was that for every design team there was a Q/A team, also made up of engineers. Our job as designers was to creat the best product we could within constraints. Their job was to try to break what we designed, because if they didn't, eventually customers would.

Our job was to make the product valuable by adding features and abilities. Their job was to make the product even more valuable by subtracting bugs and poor design decisions. Sometimes they don't find much, but we couldn't know that until they tried.

I've always viewed the role of defense attorneys as being the QA engineers of the criminal legal system. The prosecutor's job is to present the best possible case to the jury demonstrating the guilt of the defendant. The defense attorney's job is to poke as many holes in that case as possible.

And just as with the engineering QA system, the defense attorney serves the same principle of judicial justice as the prosecutor, by forcing the prosecutor to make a good case. When the prosecutor doesn't (e.g. OJ Simpson) then the defense attorney will poke lots of holes in the prosecutor's case, and the defendant will walk.

But that's not the fault of the defense attorney. (And I don't fault Jonny Cochran.) It's the fault of the prosecutor for presenting a weak case.

Guilt and innocence, justice and injustice, these are not the job of the defense attorney. His job is to keep the prosecutor honest.
posted by Chocolate Pickle at 4:26 PM on April 14, 2010 [9 favorites]

I've been thinking about this a lot lately, for various reasons, and I think to do it you have to deeply believe in the process--that you fight for the defendant, the other side fights for the prosecution, and the jury will decide based on the evidence that you present. So although you're taking a particular position, you do not decide guilt or innocence: you're making an argument for innocence, the other side makes an argument in opposition.

So, I think, belief in the system and that the world tilts toward truth. Same as the prosecution.

Defense attorneys often represent (in the case of court-appointed attorneys) people who have seriously never had anyone advocate for them in their entire lives. As a defense attorney, you are the last person who might be able to protect someone from paying unfairly for a set of circumstances--selling crack instead of cocaine, for example--that the world has handed to them through a variety of circumstances entirely beyond their control and that in many cases punishes the poor more severely than the rich. This is unfair.

That said, I think being a defense attorney, like being a cop or an internet moderator, can have a terrible effect on the brain over many years and start to make you see the world as populated by a horrific malignancy of...people.
posted by A Terrible Llama at 4:27 PM on April 14, 2010

Consider OJ Simpson. Many who followed the trial believed he was "clearly guilty," including his own counsel, but the state had the burden to show how the evidence in the case pointed beyond a reasonable doubt to his guilt, and then the jury in the trial had to agree that the prosecutors made a better case than his defense did, given the evidence.

Well, we all know how that turned out.

His lawyers just had to show that there wasn't ample evidence to convict him of the murders and convince the jury. And that's exactly what they did. Whether the verdict was "correct" or not isn't even as important as the fact that the people making the case for him did a better job than the ones making the case against him.
posted by contessa at 4:27 PM on April 14, 2010

...and I see that you have emphasized 'clearly' guilty and I think still, belief in the overall system.

And as in most other professions, probably some people do it because they're assholes.
posted by A Terrible Llama at 4:29 PM on April 14, 2010

How else would you distinguish between those who are "clearly guilty" and those who are "obscurely innocent"?

You do realize that we have locked up, and even executed people who were "clearly guilty" only to find out later that they were, in fact, innocent. You do know that people even confess to crimes they did not commit.
posted by weapons-grade pandemonium at 4:35 PM on April 14, 2010 [4 favorites]

You have a lot of misconceptions. To clear up a few of them off the bat:

1. "Defense attorneys" is not what you're asking about. You're only asking about criminal defense attorneys.

2. Criminal defense attorneys are decent people, and even asking if "they have no conscience" is pretty insulting.

3. Suggesting that criminal defense attorneys are generally rewarded with "fame" and "easy money" is laughable. Most criminal defendants can't afford lawyers and get them provided free by the state. When your job exists just by virtue of the government taking measures to ensure that the accused have their basic rights met, you're not going to be raking in the dough. You're apparently thinking of high-end attorneys like Johnnie Cochran. I'm sure he made a lot of money from representing O.J. Simpson. But very few criminal defense attorneys are Johnnie Cochran.

Now, here are some more considerations:

- Criminal defendants in the US (I know you're in Canada, but I'll talk about the US since that's what I know about) have a constitutional right to "effective assistance of counsel," i.e. being represented by a competent defense attorney. If a criminal defendant is tried and convicted and sentenced, but the counsel was ineffective in a way that might have made a difference in the outcome, the conviction should be reversed. So if you know a defendant is guilty and you definitely want the person to be imprisoned, you should want the defendant to have an effective attorney so the conviction doesn't get reversed.

- You could argue that prison conditions are unconscionable, even for guilty people. (Previously.)

- A defense attorney's whole job isn't exonerating defendants. A defense attorney could decide someone's clearly guilty and choose a tactic of arguing: "Yes he did this terrible thing, but considering the mitigating factors, he should get a light sentence."

- Imprisonment isn't the only result of a conviction and sentence; there are many "collateral consequences" of a criminal conviction. It's on your permanent, public record for life, which could prevent you from getting a job even if you get rehabilitated. For sex offenses, the consequences have become even more dire in the US. (I've seen reports that other countries either have similar systems or are considering them, but I don't know much about that.)

- Let's face it: most criminal defendants are men, and men are often the main bread-winners for a family with children. No matter how much contempt you may have for that man, the children aren't guilty. Shouldn't you want him to be defended as strongly as possible before he gets taken away from the family?

- You're implying that if someone's guilty of a crime, it's uncontroversial that imprisonment is the right result. Some people think many of the things that are crimes shouldn't be crimes at all -- say, prostitution or drug possession.

- The entire process of going through the criminal justice system is surely quite humiliating, and it's imposed on people by the government. Especially if you have an anti-authoritarian or anti-government leaning, you might have a passion for representing the accused simply out of a desire to protect anyone going through that system. If they're mostly guilty of crimes, then so be it -- they still deserve whatever procedural protections they can get from these indignities.

- Even if prison conditions are fine and the defendant unquestionably did something very wrong, it's still not a given that prison is the solution. For instance, if this person committed a crime (even a violent one) because of a substance abuse problem, some people would say the solution isn't to lock them up but to give them treatment.

- Even aside from sentencing, a criminal trial isn't just about whether the defendant is guilty; it's also about what evidence is admissible. If any defendant who's "clearly guilty" wasn't well-represented, then any evidence could be admitted, including evidence that's obtained through constitutional violations by the police (e.g. illegal warrantless searches). At least in the US, the policy we have for deterring such police misconduct is to prevent the prosecution from introducing the evidence. So, criminal defense attorneys are also defenders of civil liberties.

- What everyone else said about the adversarial system. Deciding to be a criminal defense attorney isn't deciding that you're going to go around arbitrarily giving people get-out-of-jail-free cards. If your client gets found not guilty, that's not something you single-handedly accomplished through some kind of illegitimate force; that means the prosecutor failed to present sufficient evidence to show that the defendant is guilty beyond a reasonable doubt. It's not attorneys but the law that says those defendants shouldn't go to prison.
posted by Jaltcoh at 4:46 PM on April 14, 2010 [1 favorite]

(Suggested follow-up question: Why do prosecutors prosecute, send to jail, and ruin the lives of those who are clearly innocent?)

Well, that is actually not analogous to what the OP is asking. Prosecuting someone you know is innocent is unethical. Defending someone you know is guilty isn't unethical. Prosecutors should never, ever prosecute someone they know is innocent, but criminal defense attorneys know in advance that most of the people they'll be defending are guilty.
posted by Jaltcoh at 4:52 PM on April 14, 2010 [4 favorites]

All of the above. Recently, The Moth podcast had a story by Ted Conover called "All Prisoners Lie." Although it does not deal directly with criminal defense attorneys, I think you'd find it interesting.
posted by Morrigan at 4:57 PM on April 14, 2010

Remember the case of the Central Park Jogger?

I certainly do. It was one of the most heinous crimes of a generation, committed by a gang of 'wildings', who immediately confessed. Everybody was terrified of wildings and really wanted to see these kids put to death. There wasn't a shadow of doubt about their guilt and the pressure on any defense attorney who dared to offer anything more than the most perfunctory defense must have been immense. And they were speedily convicted, too, and political careers of prosecutors were made by those convictions.

The famous civil rights attorney William Kuntsler chose to defend one of them even though it horrified his own young daughters:

EMILY KUNSTLER: When I was ten years old, I remember pleading with him not to represent a teenager accused of a gang rape. But once his mind was made up, nobody could stop him....

EMILY KUNSTLER: Yusef Salaam became his obsession. For two years, Dad wrote appeal after appeal and finally lost when New York’s highest court affirmed the conviction. I was mad at him for taking this case.

There was only one problem:

AMY GOODMAN: An excerpt from the documentary William Kunstler: Disturbing the Universe. Well, Bill Kunstler died in 1995 at the age of seventy-six. Seven years after his death, there was a startling development in the Central Park jogger case.

BRIAN WILLIAMS: You may remember a famous case here in New York. It was called the Central Park jogger attack. And back in 1989, it stunned this city—the nation, really—and resulted in the arrests of five teenagers. Now it turns out they apparently got the wrong guys. And today New York prosecutors moved to have all the guilty verdicts set aside.

I think it's a tragedy Kunstler did not live long enough to see just how triumphantly right he was, but I don't think he would see it that way:

EMILY KUNSTLER: I think Dad always believed in Yusef’s innocence. But I’ve realized it was never about innocence for Dad. He looked at Yusef and saw a kid who had been convicted by public opinion, and by his own daughters, before the case ever went to trial.

If we could all be so wrong about that case, then we could be that wrong about any case, and that's why we need attorneys like Bill Kunstler, who will defend the most unpopular defendants to the best of their ability.
posted by jamjam at 4:59 PM on April 14, 2010 [29 favorites]

Nobody is clearly guilty. And this is chatfilter.
posted by crush-onastick at 5:00 PM on April 14, 2010

Prosecuting someone you know is innocent is unethical.

Damned right. Mike Nifong was disbarred for doing that.
posted by Chocolate Pickle at 5:04 PM on April 14, 2010

I'm going to be working at a Public Defender's office starting next month and for the rest of the year; I've done some criminal defense work in the past, and I think that's where I want my practice to be. I'd like to start by discussing a few of your premises

Why do defense attorneys defend those who are clearly guilty? Do they have no conscience? Do they do it for fame? Do they do it for the easy money (will get paid even though the verdict will definitely be guilty)?

1) Very, very few defense attorneys get famous.

2) If you're a public defender or court appointed counsel, you get paid no matter what. If not, getting paid is not particularly easy because of clients skipping out bills. Also, no matter what the easiest option for a defense attorney is a plea; lazy, incompetent or greedy defense attorneys aren't the ones going to trial.

3) Even someone who is clearly guilty deserves someone to stand up for them. Leave completely to one side laws that are unjust, or the value of the adversarial system as a truth finding mechanism, or general opposition to incarceration. If you're in court with the whole weight of the state brought to bear against you, you absolutely deserve the right to have someone stand up for you and apply at least a little break on that process. It's hard to imagine how powerless someone can feel in the hands of the criminal justice system, how dehumanizing the whole process can be. This also goes along with my next point which is,

4) Most of what defense attorneys do is plea people out. When that happens, their role is to help put a human face on their client, to make sure that the court understands the toll that sending them to prison will take. The fact that someone is clearly guilty doesn't mean that they lose the right for the Court to see them a human being deserving of mercy. Prosecutors won't do this, they don't know the defendant, they don't know what his life is like.

This is pretty quick because I have to go eat dinner, but I wanted to try to hit a few points that haven't already been made a couple times. Think about it though: how many jobs let you make a living standing up for people against the government? Not that many, and it kicks ass.
posted by Bulgaroktonos at 5:21 PM on April 14, 2010

More or less the same reasons referees call penalties for teams that obviously suck more than their opponents. To keep it fair.
posted by gottabefunky at 5:43 PM on April 14, 2010

You do realize that criminal defense attorneys are officers of the court as well as their client's representatives, right? I can't put a witness on the stand that I know will commit perjury. I can't withhold written evidence of a testifying witness, even though it will help the prosecutor prove my client's guilt. I can't lie to the court when they ask why my client hasn't bothered to show up and want to put out a warrant for his arrest (although I can say nothing.)

But to answer your question: I defend guilty people because I think it's more important for the state to follow correct procedures, follow the law and occasionally have guilty people avoid punishment then to let the prosecutor make the decision of who is guilty and who is innocent. And very few of my clients actually fit under that category of "guilty." You would be shocked how often the state goes after a person who doesn't deserve the charges against them, or whose constitutional rights were flagrantly violated, or who really did not commit the crime in question but ends up pleading guilty because they'd rather take moderate consequences now then run the risk of serious consequences if convicted at trial.
posted by Happydaz at 5:45 PM on April 14, 2010 [5 favorites]

Ask a public defender. My Dad almost defended Charles Manson and would have been happy to do it. Everybody gets a defense, no matter how seemingly guilty they are.

After a while I think my Dad just enjoyed screwing with the lying cops and the poorly prepared assistant D.A.s as much as anything.
posted by mrhappy at 5:47 PM on April 14, 2010

If you are a criminal defense attorney almost every one of your clients is guilty as sin. Usually the issue is not guilt or innocence but appropriate charge and appropriate punishment. They were caught red handed. Nearly every case settles. There are a few where the client is clearly guilty yet wants to roll the dice in trial. Sometimes the state violated their rights, Miranda whatever, but often it is just a matter of less than stellar proof. There is a high burden on the state. These guys deserve competent counsel for the system to work. You won't ask them if they did it though. Rahter you will concentrate on how each side will present and attempt to prove its case.
posted by caddis at 7:13 PM on April 14, 2010

Ernesto Miranda was clearly guilty. Hell, even after his conviction was overturned because he was never advised of his rights, resulting in the famous Miranda warning, he was retried and found guilty again. If he hadn't been zealously defended, how many people wouldn't know that they have the right to remain silent, that they have the right to an attorney, et cetera?

The system has to work that way, or it doesn't work.
posted by Etrigan at 7:17 PM on April 14, 2010 [1 favorite]

I dated a public defender (handy!) and to her, for guilty clients, it was about keeping their sentencing sane. She was also very religious (and liberal), and she saw that role as consistent with Jesus's mercy.
posted by NortonDC at 7:19 PM on April 14, 2010 [1 favorite]

The OP makes a common mistake: identifying the lawyer by his client.

A criminal defense attorney will, by definition, represent people charged with crimes. Many people charged with crimes have engaged in all kinds of criminal activity, and live lives that are filled with all kinds of physical and emotional mayhem. It is not a pleasant environment.

But the individual charged with a crime, regardless of his home or environment, is entitled to have someone stand up for him. It does not matter that he might have committed 2 or 22 other crimes (unless he has been convicted of them, and is going to testify), or that he is an altogether reprehensible person; the issues that his attorney is defending are whether he did THIS crime at THIS time, and whether the prosecution can prove it. His attorney is the only one who will speak for him.

Even in the rare case of someone who, as the OP says, is "clearly guilty", and even someone whose crime is horrific, the defendant still need someone to advocate for him, to ensure that he is accorded the due process that our laws guarantee to him.

The lawyer who represents him does not vouch that he is a great guy. He will not be inviting him to his parties, will not introduce him to his friends, etc. His job is to get the best result for his client. He will probably not be knocking back beers with his client after hours.

After the courtroom hearing is over, the lawyer will probably go back to his home. His client, if he is still free, will return home, or somewhere else. Their paths will probably not cross again until the next time the lawyer is needed.
posted by yclipse at 7:20 PM on April 14, 2010 [1 favorite]

We should clarify that a defence lawyer cannot knowingly mislead a court. So if a client tells her 'Yes I shot the policeman' then the defence lawyer cannot argue that the client is innocent by way of mistaken identity.

Sometimes this means that a defence lawyer asks a client not to tell the full circumstances, but only what is necessary to mount a convincing defence (or plea in mitigation). Perhaps you could consider this to be wilful blindness. But it is the defence lawyer's job to mount a strenuous defence, because our system is an adversarial one.

I should note that the Prosecutor has a good faith duty to present all relevant evidence to the Court, whether favourable or unfavourable to the prosecution case. The prosecutor does not seek conviction for conviction's sake alone, and if the balance of evidence indicates that a prosecution will not be successful, the prosecutor has the discretion (and obligation) not to prosecute. In this sense the prosecutor has a broader duty of investigation than the defence.

Remember that a lot of what you might have read or seen on TV about the law actually makes no sense at all and is completely false.
posted by kid A at 9:07 PM on April 14, 2010

Because, ultimately, the justice system is about limiting the power of the government to deprive you of life, liberty, and property without proving its case beyond a reasonable doubt. It doesn't matter whether someone is actually guilty or not, the government must prove it. Defense attorneys are a powerful check on authoritarianism.

Fundamentally, you're supposed to be able to get away with stuff in America. That's how it was designed. And it was designed that way to help make sure we didn't imprison people unjustly. The original thinking was that it was better to let a hundred guilty people go free than to lock up a single innocent. At one time in this country, we considered imprisoning an innocent to be among the worst of crimes.

I find it a real shame that we've lost our cultural narrative so badly that you could even seriously ask the question. :(
posted by Malor at 10:38 PM on April 14, 2010 [1 favorite]

Re what Malor said about losing the cultural narrative: If I remember Dr Johnson correctly, it's not a new development--I seem to recall someone asking Dr Johnson basically the same question, in (probably) about 1760. His answer was roughly that it would substitute trial by counsel for trial by the Court.
posted by Logophiliac at 12:19 AM on April 15, 2010

serazin makes a good analogy: One possible analogous question might be, "Why does a doctor help a smoker/someone with a poor diet/someone who has a gunshot wound from a firefight they started/etc?"

When I did legislative work, I worked with public defenders and their clients, and with those already incarcerated. Now that I'm studying counseling, I get into a lot of conversations about the populations I want to work with and the ones I want to avoid. Many of my friends have determined that they will not work with offenders. I respect that choice, but it's not a line I've drawn. Do I want to work within the prison system? Not really, but that's more about the corrections industry than about the people living within it. As someone focused on substance abuse counseling, trauma, and grief, I don't have to wonder whether I'll see offenders (or people who share actions for which they were never prosecuted). I know I will, and I'm fine with that.

As everyone's said, the legal system in the US requires representation. Sure, there are defenders who don't live up to the implied requirement that it be good representation. That's humanity. However, the people I know who defend the accused who may be [clearly|possibly|no way] guilty are the sort of people who do this work because they believe in the right of the individual to represent his/her interests against the power of the state.
posted by catlet at 3:40 AM on April 15, 2010

If you've ever done a real, actual case, you'll understand that nobody from the outside who hasn't read the case file can say your client is "clearly" guilty. The people you should believe the least are journalists. They will give you the impression they know all about your case without looking at your case file. And they pass that perception on to you.

I've represented dozens of clients. Not a one has ever said "I did it, get me off." Not a one. And it isn't my job to decide that. It is the job of the fact-finder. I've had my suspicions, sure--suspicions that have been confirmed. But I would be actively doing wrong to substitute my judgment for that of the fact finder.

More importantly, your question completely ignores the penalty phase of any trial. Every single human being is a mix of good and bad and the good needs to be revealed to the person or persons who decide what the penalty is going to be.

My old lawyering skills professor once said that if someone is using the word clearly, its not clear at all. And he's right--its a substitute for actually showing the actual evidence, which is often not there.
posted by Ironmouth at 6:00 AM on April 15, 2010 [2 favorites]

One example from real life--OJ. All those jokers who tell you he's guilty are telling you that they somehow know better than the twelve persons on that jury who actually sat in that courtroom day after day, mere feet from the witnesses, and heard every moment of testimony, saw every facial expression close up, and physically examined the evidence. Really? So many millions drew their opinion of that case from news reports and a few snippets of trial footage. Really?

Frankly, those people are fools.
posted by Ironmouth at 6:05 AM on April 15, 2010

Do they do it for the easy money

The public defender in my county is a friend of mine. She may show up here to explain why she does what she does, but my take is that it's a way of making sure that everyone gets a fair shake, a chance to defend themselves. If you grew up poor in a poor county you're already having a tough time of it and allowing people access to affordable legal defense helps level the playing field. In the US we believe people have the right to a competent legal defense if they are charged with a crime.

My friend works for a tiny firm that has the public defense contract for the county [this is how it works in Vermont]. They also do regular criminal defense. They're paid one fixed amount by the state to defend everyone who needs a defense for the year. IIRC, that amount, for basically two lawyers (plus their staff), is in the five-figures. Some of these cases take weeks or months. If the client has basically no ability whatsoever to pay [some of them pay a sliding amount] their cost for this is $25.While some criminal defense cases are high profile and high paying, for the most part people who do public defense do it for reasons other than money. Even most of the lawyers I know who are well-compensated still work their asses off.
posted by jessamyn at 7:48 AM on April 15, 2010

Aww, I'm sorry I'm so late to this party. To reiterate, each of the OPs questions reflects a fundamental misunderstanding of the adversarial legal system.
posted by craven_morhead at 8:20 AM on April 15, 2010

Your bias in this question is astounding. Why aren't you as confused/outraged by the prosecutors who prosecute the innocent?

You don't know that the OP is biased. He/she asked about defense lawyers. That doesn't mean he/she has no feelings about prosecutors. They just weren't pertinent to the question.

There have been some great answers here, but, please, folks, don't be so hard on the OP. This question is something may non-lawyers have wondered about. Most of us average Joes simply can't imagine defending someone who we were sure was a rapist or murderer. You all have explained that well. But the OP isn't nuts or callous for wondering about it. If we think someone committed a terrible, violent crime, many of us can't even be in the same room with that person.

And I'm still not sure the question has been 100% answered: it sounds like (a) the majority of cases are not cut-and-dry, so defense lawyers usually don't know for sure if their client is guilty or not; and (b) even in cases where the lawyer is sure his client is guilty, he is able to defend his client, because he believes in the legal system.

(b) makes it sound like people who become criminal-defense lawyers believe so "religiously" in the legal system that they have absolutely no qualms about, say, representing someone they believe to be a child rapist. Obviously, every lawyer (being human) is unique, but is this generally true? Are they, in general, people with such strong beliefs in the rightness of the system that they can easily sleep at night while representing murderers or rapists?

I think that's the core of the OP's question. I have the same question, because though I believe in the system in an abstract way, I'm not sure that when faced with an actual child rapist, I would be able to stand by my beliefs. So does that just mean I don't have the right kind of personality to be a criminal-defense lawyer. Or is that a normal reaction that even many lawyers struggle with?

You folks have explained WHY lawyers defend people they think are guilty. You haven't explained HOW they do it. How they overcome something that would be really hard for most of us to overcome.
posted by grumblebee at 9:37 AM on April 15, 2010 [1 favorite]

good stuff grumblebee. I think there are some lawyers in situation b that really can disassociate from their client's bad deed (say Ron Kuby). Most of the one's I know are not that comfortable with it but they still do it because they believe in the system. It also does not come up that much. The usual situation is that the client is going to plead but needs competent counsel to get a fair sentence. Even child rapers deserve a fair sentence. The harder situation arises when the prosecutors have crappy evidence and the case is headed to trial. If it is situation a, no problem but situation b, then the lawyer has to make sure he or she does not contribute to the client's perjury. It's usually not a great idea for the accused to testify unless that is the only way to get an important fact in front of the jury. Most of the lawyer's job will be like the lawyers in the OJ case, pointing out weaknesses in the prosecution's case, that DNA might be contaminated, etc. The prosecution has a high burden and all the defense has to do is convince the jury that it has not been met. The defense does not have to prove that the defendant is innocent. The defense attorney's job is to raise a reasonable doubt in the juror's minds. It certainly can be helpful to have an alternative explanation for the evidence against the defendant but if the lawyer knows the defendant is guilty the lawyer must tread carefully; as Kid A pointed out the lawyer can not knowingly mislead the court.
posted by caddis at 11:22 AM on April 15, 2010

To answer your questions in order:
1. Since I'm a public defender, so I don't get to choose my clients. I represent them all to the best of my ability. But most people's perception of "guilt" is much more black and white than it actually is under the law, as has been pointed out by others. For example, maybe the person engaged in conduct that could constitute a crime, but he didn't have the required bad intent. Maybe there is a defense (e.g. self-defense when charged with assault). Maybe his rights were violated during the investigation. Maybe the person is mentally ill or developmentally disabled and didn't know what he was doing. Maybe the person did nothing and is completely innocent (yes, it happens).
Also, keep in mind that over 90% of criminal cases plea. That means the vast majority of my job is getting together mitigating information to show how my client got himself in this situation and why he isn't a completely bad person or a lost cause.
2. Yes I have a conscience. A very strong one. See, not only can I sympathize with the people who have been victimized by crime (and I do, in nearly every case), I can also see the humanity in the person who committed the bad act. It is difficult, and I understand that not everyone can see both sides, but I wish more people would.
3. Fame? I HATE it when my name is in the newspaper. It is always for the most horrific cases.
4. The "public defender" part of #1 should answer this.
posted by janerica at 8:18 PM on April 15, 2010 [2 favorites]

There are a lot of great points here about the adversarial system and who's job it is to determine guilt or innocence and defending a client's interests in sentencing beyond the trial/plea stage and everything else, but I think that all misses the grandest point about how, exactly, defense attorneys can defend "clearly guilty" clients.

We do it because they are our clients, and they badly need representation, and they need somebody who knows the lay of the land to help them.

Some clients make this easier than others, but in the end, everybody needs somebody willing to fight for them, to make sure that their ass is covered. In the legal community, criminal defense attorneys are the boy scouts of the bunch. There's very little doubt about whether we have consciences or not. The question is whether we have enough sense to know that we can earn a lot easier money doing almost anything else in the profession.
posted by Navelgazer at 6:51 PM on May 6, 2010 [1 favorite]

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