Stat Counter

View My Stats

Sunday, January 14, 2007


A FAQ from clients to their lawyers: “Do you believe I’m innocent?”

My mind races. Here’s what I want to say.

“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."

That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.

Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.

The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.

And probably not in formulating a foreign policy, either.

I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.

Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.

I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.

I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.

It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.

Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.

Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.

In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.

Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.


  1. very interesting point - i hadn't thought of that. it must be one of the few administrations in which president and vice president and most of the advisory staff are NOT lawyers.

  2. Actually, Max, I've thought a bit about it. The Founding Fathers all had legal training - deemed a needed part of the enlightened education of their class to learn English Law. Lincoln was a very fine lawyer and his speech writing reflects that training and more - he was a poet with understanding of the common man. Bush is merely common, a mediocre thinker to whom the electorate is attracted in the false hope that ordinariness means understanding of ordinary people, a basic defect of democracy.