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Monday, August 22, 2005

"How can you defend those people?"

I am a criminal defense lawyer. I have been asked that question for thirty-four years. Each time I answered it, I had to think about it. Now, I am going to give the definitive answer.

For my first twenty years of lawyering, I was a public defender in L.A. When I entered private criminal defense practice, fewer people asked the question, and there is a subtly different tone to those who still do. Obviously, some people now give their own answer before they ask it:

"For the money."

Their perspective is revealed by a knowing and cynical leer. For these questioners, I sometimes wink back, rather than launch into the muddy waters of self-justification.

Others accompany the question with an unstated corollary:

"... when you could make more money with less aggravation in civil law?"

This form of the question is most often asked by civil lawyers, their wives, or doctors. It was often asked by my relatives, after talking with civil lawyers or their wives. For these questioners (including my relatives), my answer is:

"I enjoy the excitement and the money is enough for me."

Or sometimes I wisecrack:

"Which people?"

You see, I defend petty thieves, prostitutes, drug users, kids in trouble, and forgers. No one ever wants to know how I can defend these people. I also defend rapists, child molesters, drunk driver/killers, multiple murderers. These are the people everyone is curious about.

That leads me to answer that the more serious crimes provide the greater degree of excitement and challenge.

If that does not satisfy, I drag out the first of my "doctor analogies:"

A doctor's greatest aspiration should be to treat the most seriously ill patient: the greater the risk to life, the greater the skill required, the greater the challenge and the greater the satisfaction when you do your job right.

If you're serious about your profession -- and if I were ill, I would want the doctor who is most serious -- you should aspire to the greatest challenge. If I were a doctor, I would want to be a brain surgeon rather than a dermatologist.

When I defend in a capital case, I am like a doctor whose patient has a life-threatening illness. If I save the life, I am doing the greatest good my profession has to offer -- even if that life I save is one which many may say is not worth saving.

The analogy also works with the corollary common questions:

"How can you defend someone who you know is guilty?"

My answer:

If I were a doctor with a terminally ill patient, I would not make judgments on the worthiness of the life I was trying to save.

Next question:

"How can you sleep with the heavy responsibility of a capital case?"

Same analogy, same answer:

A doctor learns to detach himself from the weight of his life and death duty; he relies on his preparation, his skill, his conscientiousness. If the patient dies, he wants to be sure he did everything in his power to prevent or forestall it; if he has, he sleeps -- perhaps fitfully at first, but he sleeps and awakes to the next case.

The answer, I admit, is not wholly satisfactory to me. The analogy is not exact. The law deals with moral guilt as its subject matter; medicine does not. But the answer satisfies most people. Once a doctor caught the problem.

For him, I had a question:

"Suppose you were asked to treat a death row inmate, a mass murderer who was scheduled to die; would you use your best efforts to save him?"

The doctor smiled and said, "I wouldn't recommend long-term treatment."

I have not always answered the question so straightforwardly. At first, in the flush of righteous belief that I was fighting The Good Fight for The Constitution and The Bill of Rights, I was offended.

I answered:

"How can I not defend these people?"

In the Sixties, when I began, this answer made me something of a hero in my circle.

Later, while my back was turned, my circle dissolved. My acquaintances -- who had been quickly "radicalized" in the Sixties -- just as quickly became "centralized" in the Seventies and "neutralized" in the Eighties. They became horrified by crimes -- first, by rape when their feminist consciences were raised; then by child molestation; then by "mass murderers" and "serial killers"; now by drug dealers -- forgetting their Sixties poses, a result I presume of all the dope they smoked back then.

When I seemed not to have moved from "the Sixties mentality," the renewed question, now became more strident:

"How can you still defend those people?"

I see now that my seeming unreconstructed liberalism made my old friends squirm. Sensing that, my answers became defensive.

I joked about it, mumbled about keeping the system honest, focused on my distaste for `hustling for a buck' in private practice, and later on, talked vaguely about the security of my county paycheck and eventual early retirement. These were acceptable answers.

But not true. In truth, I had moved a long way from the righteousness of my youth, into a new righteousness of middle age. As a public defender, I began to see the dangers of false liberalism. I had seen liberal judges pay lip service to the law, find my clients guilty on less than convincing evidence and then "not hurt them" in sentencing.

I became a true “conservative.”

The liberal trusts in the benign power of government to restrain the individual for the common good. He deals in big numbers. If a few individuals must be sacrificed for the good of the many, so be it.

The true conservative is skeptical of governmental power over the individual and seeks to restrain its use. The most power a government wields, short of the ability to wage war, is the police power to incarcerate and execute individuals. I fight for the rights of the individual against the power of the government. That makes me a conservative.

In the 70's, when feminists and their fellow travelers, reading accounts of rape trials and TV "docudramas", attacked rape laws which, in their view made it too difficult to convict rapists, they were uneasy when I reminded them about the lesson of history, as reflected in such “right-thinking” morality tales as "To Kill a Mockingbird". Their response: "That was about a Black guy in the South." My liberal friends forgot that such laws so easily led to abuse.

I still believe that it is better to acquit many guilty people than to wrongly convict one innocent person. No one else believes this anymore.

When an increasing crime rate brought cries for longer sentences, reinstatement of the death penalty, elimination of "technicalities" such as constitutional rights and defenses, no one wanted to hear my answer:

It is dangerous to urge both more harsh sentences and easier convictions. The more severe the sentence, the more certain should be the system of proving guilt. If you are going to put someone in jail and throw away the key, it should not be done on the uncorroborated claim of one witness, which history has shown us is unreliable.

Don't get me wrong. I feel the victim's rage. I have been a father, a husband, a homeowner. I worry about rape, child molestation, burglary. I would kill to defend my home.

I believe that some people deserve to die for their crimes.

But when asked about the death penalty, I cannot answer glibly. Most people don't like my answer; it is not what they want to hear. It is not simple. They expect me to say I am opposed to it. I am, but not for the reasons they think; not for abstract reasons.

I repeat: I believe that some people deserve to die for their crimes.

But I have seen the way the system works and conclude that it is fatally flawed. I have watched it, studied it, participated in it for more than twenty years. The defect is basic:

It does not rationally distinguish between people who deserve to die from those who do not.

While my erstwhile liberal acquaintances, like everyone else, are untroubled by this, I can't live with it. I find that people do not care about that answer. It disturbs them. They want their issues chopped with a butcher knife, not carved with a scalpel. They are angry and anger compels stupidity.

1 comment:

  1. Great post!

    I know this might offend your sensibilities (the Cassandra thing), but I totally agree with your argument here.

    Funny how, under Bush especially, liberalism has been trending toward libertarianism (or, as I would put it, social libertarianism - distrust of large organizations and governments balanced with equal distrust of idologies of isolated individualism).