In Defense of The Defense Attorney

Hello, everyone!

American history was made Friday when Ketanji Brown Jackson was confirmed to the Supreme Court. Not only is she the first Black woman to become a justice, but she’s also the first public defense lawyer to ever make it to the court. The role of public defender is a thankless one. Dependent on the state to allocate funding and resources, public defenders are often overworked and underpaid. Federal public defenders, like Ketanji Brown Jackson, have better pay and a lighter caseload than their state counterparts, but they still deal with controversial cases. In Jackson’s case, her role as defense counsel for Guantanamo Bay detainees as a federal public defender, and again as an attorney in a private firm, provided fodder for Republic senators to question her patriotism and loyalty to the United States.

Senator Josh Hawley called her work “concerning,” while other senators accused her of “defending terrorists.” As a viewer, I couldn’t help but feel alarmed at the line of questioning. While the majority of the attacks were bad-faith attempts to paint Jackson as some sort of radical, there was an underlying theme running through the accusations, namely that it’s un-American for Jackson to defend Guatanamo Bay detainees because their crimes are so egregious that they do not deserve legal counsel. Further, there was the implication that being a defense lawyer in itself was something distasteful, and that by working as a public defender, Jackson had helped criminals beat the system and get out of jail scot-free.

It’s difficult to understand how we could have gotten to a point where American senators, including one who worked as a private defense attorney and even taught constitutional law, could be attacking a nominee for upholding a defendant’s constitutional right to legal counsel. The right to legal assistance is enshrined in the 6th Amendment and bolstered by landmark Supreme Court cases like Gideon v. Wainwright, and in many ways, it’s one of the primary structures preserving freedom in the United States. Writing for the majority in Gideon v. Wainwright, Justice Hugo Black said it best:

Even the intelligent and educated layman has small and sometimes no skill in the science of law […] Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

The strength of the law is overwhelming and unforgiving. Even though the foundation of the American justice system rests on the principle that all defendants are innocent until proven guilty, the public often sees the exact opposite. Clara Shortridge Foltz, a trailblazing lawyer who first proposed the idea of a public defender at the 1893 Chicago World’s Fair, eloquently summarized this disconnect between the theoretical constitutional right to legal counsel and its practical application:

For the conviction of the accused every weapon is provided and used, even those poisoned by wrong and injustice. But what machinery is provided for the defense of the innocent? None, absolutely none.

We see the failings of the legal system all the time, from high-profile wrongful convictions, to a plea-bargaining system that coerces defendants to accept punitive “deals” to spare the state the time and expense of a trial. Time and time again, defendants are denied the constitutional rights that are supposed to protect them, and often the only thing standing in the way of these violations are defense attorneys. American society hates anything that infringes on its personal freedoms, so one would think that defense attorneys would be seen as community heroes; soldiers who go to battle against the state to protect the vulnerable. But in reality, the perception of defense attorneys is drastically different. While prosecutors are seen as valiant knights who labor tirelessly to keep criminals off the streets, defense attorneys are seen as shady, greedy, and unethical. We can blame this misperception on the fact that the closest many Americans will get to a criminal defense lawyer is their TV screen, and if there’s one place that defense lawyers get a bad rap, it’s onscreen.

My first exposure to defense attorneys came from the show Law & Order. The show never pretended to be fair. Developed in the midst of Clinton’s “tough on crime” presidency, Law & Order made it clear exactly who the audience was supposed to be rooting for by portraying the police and prosecutors as tragically flawed heroes, while the defendants and their lawyers were shown to be little better than dirt on the Lady Justice’s shoes. While prosecuting attorneys like D.A Jack McCoy and his crew of rotating women were revered for their noble efforts to reduce New York City’s murder rate, the opposing defense attorneys were uniformly vilified. Their characterizations ranged from sleaze-bag to slime-ball, and even though these attorneys were doing the thankless job of defending the accused, in the eyes of the viewer, they were guilty by association. The state was always in the right, and the show rarely, if ever, showed unlawful arrests, violations of due process, or wrongful convictions. By portraying the law as an adversarial system between heroic prosecutors and villainous defense attorneys, Law & Order convinced an entire generation of viewers, including myself, to place all their trust in the justice system and to see the defense system as a vehicle for protecting criminals, rather than a constitutional protection against systemic injustice.

Not all TV shows portray criminal defense attorneys in the same negative light as Law & Order, but more often than not, they characterize these attorneys as morally ambiguous, with a greater tolerance for criminal activity, and a willingness to engage in this activity if it will help them achieve their own objectives. For example, the shows How To Get Away With Murder, Breaking Bad, and Better Call Saul depicts defense attorneys committing crimes on their own or their client’s behalf. A similar theme emerges in film, with movies like The Firm, The Lincoln Lawyer, The Whole Truth, and The Devil’s Advocate showing defense attorneys who engage in criminal behavior. The overlying presumption from all of these movies and TV shows is that the only people who could ever defend someone accused of criminal behavior is someone who is willing to engage in criminal behavior themselves. Defending the accused is depicted as a necessary profession, but a tainted one, and consequently the type of people who become defense attorneys are shown to be morally compromised.

This belief is alluring because it’s so simplistic. For those of of us who see crime and punishment in strict black-and-white terms, it’s all too easy to see defense attorneys as roadblocks in the path towards justice. If you believe that the justice system never errs in separating the guilty from the innocent, then it’s logical to assume that defense lawyers only provide counsel to guilty parties, and are little better than pests impeding the course of justice. This brings us back to the attacks on Justice Jackson. From this simplistic viewpoint, they make perfect sense. In a just world, defense attorneys wouldn’t be necessary, and providing legal counsel to the obviously guilty would be detrimental.

But it’s clear to anyone who looks outside their own front door that the world is unjust, and that defense attorneys, even those who appeal for the rights of heinous criminals, are more necessary than ever. We can’t look to shows like Law & Order to understand our justice system, nor can we let our media’s perception of defense attorneys cloud the reality that a strong criminal defense system is vital to ensuring a truly free and equal nation. When we start to question a citizen’s right to legal counsel, then American becomes even more of a country where the law is used as a cudgel against the poor and the vulnerable. The right to legal counsel is the backbone of our democracy. There is nothing more patriotic than defending the accused.

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