Thursday, April 12, 2007

I've been asked to comment on whether the good job done by the team of defense attorneys in the Duke lacrosse case has caused me to rethink my (usually negative) views towards defense attorneys...

Before I do so, I'd like to ask: am I the only one thinking that these particular attorneys - as highly touted as they were - didn't do much more than any garden variety defense attorney would have done, that the dismissal of the charges had more to do with the shakiness of the case (no DNA, lack of any witnesses, Reade Seligman's pretty airtight alibi and the 'victim' changing her story more times than she changed her underwear) than with any brilliant work done by the defense attorneys?

Anyway, when I was younger and contemplating law school and a career as a prosecutor, my (as it turns out, naive and idealized) view of prosecutors is that they got bad guys off the street and into jail for as long as the sentence dictated by the crime... and my (as it turns out, naive and idealized) view of defense attorneys was that they kept those who didn't do what they were accused of doing from being convicted and going to jail.

In other words, my view was that everything revolved around achieving 'justice'... the guilty went to jail and the innocent went free.

And that, unfortunately, is not how it works. There are prosecutors such as Nifong and Patrick Fitzgerald and the DOJ attorneys on the Enron Task Force who lie and manipulate the system in order to convict those unfortunate enough to have fallen into the prosecutor's crosshairs. There are judges (such as Lance Ito, who presided over the OJ Simpson debacle, and Ronald Stephens, the judge who enabled Nifong during the initial stages of this case) who pay more attention to the political winds than they do to making sure justice is served in their courtroom. And there are defense attorneys who lie and scheme and manipulate the system in order to keep their guilty clients from receiving the punishment they ought to have received for doing what they have done.

It doesn't matter to me that these prosecutors and defense attorneys are only working 'within the system'. I don't view the system as what is important. Reaching the 'right' verdict is what is important. The system was designed to help society reach the right outcome... and while it sometimes results in the proper verdict, it is twisted and manipulated way too much in order to achieve a 'preferred' outcome, not the right outcome.

So it doesn't matter to me if the police make a typo on the search warrant. It doesn't matter to me if a procedural error is made by either side. It doesn't matter to me whether the police should have opened the trunk where they discovered five hundred pounds of cocaine. I don't care if the police question someone without reading them their rights. The only thing that ought to matter is whether we reach the 'right' verdict... with 'right' defined as 'guilty' for those who did what they were charged with doing, and 'innocent' (not not guilty) for those who didn't do what they were charged with doing.

In this case, the defense attorneys helped their clients achieve justice. As North Carolina's Attorney General said during his press conference yesterday, these three guys are not just not guilty, they are innocent of the charges brought against them.

That is the way the system is supposed to work. Unfortunately, it doesn't work that way enough of the time. Too many criminals are let off because a witness doesn't show up. Too many criminals are let off because of a procedural error on the part of the police or the prosecutor. Too many criminals are given lesser sentences than ought to be the case because the prosecutor is too busy or is friends with a particular defense attorney. And too many innocent people are convicted... sometimes because of incompetence or inexperience or a mistake in trial strategy on the part of the defense attorney and sometimes because of prosecutors and/or police who lie and cheat and withhold evidence and threaten defense witnesses.

I have no problem with a defense attorney getting an innocent client acquitted of the charges levied against him. That is why God invented defense attorneys, to help protect the innocent. Heaven knows if I were ever falsely accused of a crime, I would want the best attorney I could get to take my case. My problem is with the defense attorneys who get their guilty clients off (note: my anger is with those who do so knowingly; while I don't like the outcome if any guilty defendant goes free, I don't blame the defense attorney who sincerely believes his client to be innocent).

And since the defense attorneys who represented the Duke lacrosse players are, well, defense attorneys, my guess is that they've helped a whole bunch of guilty clients stay out of jail and helped other guilty clients get a lesser sentence than was deserved for the crime they committed. The fact that every now and then they actually help a truly innocent client remain free doesn't change the fact that, for what is probably a good part of their respective careers, they've helped the guilty stay out of jail. Doing the right thing every now and then doesn't make it okay to do the wrong thing the rest of the time.