Justice and Factual Guilt? Not My Problems

I am partial to libertarians, so John Kindley of People v. State has a soft spot in my heart. To others, Kindley has a soft spot in his head, at least when it comes to the topic of justice in the courtroom. Kindley has sparked a discussion that has not exactly gone viral, but has been passed back and forth among a couple of law bloggers. See Kindley here.

The issue is whether criminal defense lawyers do justice. Kindley believes they ought to aspire to do so. Justice is, after all, all that there is. I don't share Kindley's view. Frankly, I am not sure Kindley even shares the position he has asserted.

What drew me into this discussion was Kindley's reliance upon several quotations from Vincent Bugliosi. The former LA prosecutor is now a defender. But he only chooses to represent those people he believes are factually innocent. He notes he doesn't want to spend 100 hours a week defending someone accused of a crime of violence if the person actually deserves punishment. As a result of Findley's piece, I've been reading Bugliosi; I love reading books by lawyers more accomplished than I am. There is always something to learn.

What seems to be missing from Bugliosi is any sense of the function of a criminal defense lawyer as a check on the state and on the self-righteous fury of the mob. What's worse, Bugliosi seems to confuse law and morals.

Whether a client has actually done what is alleged rarely crosses my mind when making a decision about whether to represent someone. It just does not matter to me. Law is not morals. I am not a priest or a psychologist. Killing may be against God's law, but I am not a member of the celestial bar. I presume God can take care of His own enforcement issues.

I defend people accused of engaging in conduct prohibited by the state. The state defines the crime by way of legislative fiat. Prosecutors then seek to punish those they have good reason to believe broke the law. My job is to defend people from the state. In doing so, I am inspired by the conviction that the state, like any other human institution, is far from perfect: It makes mistakes, acts in fury, and is capable of waste. Bugliosi lacks a tragic vision of what the state can do. Oddly, even with his many years in the criminal justice system, he writes as though the state were the church.

But even assuming the state were rational, even God-like, I would still defend a person accused of a crime. In other words, I would defend a person I believed to be factually guilty against the state. The role of Devil's advocate comes easily and naturally to me. (TX to Mark Bennett for catching typo this a.m.)

How could I do that with good conscience?

It isn't a question of conscience, or a matter of morals. The state must prove its case beyond a reasonable doubt. Dicta in our cases say, and I believe, that it is better for ten guilty men to be set free than for one innocent person to be convicted. The reason for this is that a state that is too powerful is a danger to liberty. If the state wants to take anyone of us and put us in a cage, it should have to fight for the privilege. Otherwise, we will all find ourselves in cages of one sort or another.

Factual guilt is not legal guilt. A person can commit a heinous act but be not guilty as a matter of law. That happens when the state fails, for any of a number of reasons, to meet its burden of proof. When this happens, I am not troubled at all. I simply don't want an omnipotent or omniscient state governing me. Such a state suffocates.

Where does that leave justice? I am not a minister of justice. I defend people within the scope of the rules of professional conduct. Justice is not a goal I seek; rather, it is, if the system performs well, a product of a process of which I am but a mere participant. As a lawyer I do not pick and choose clients based on my conception of justice.

Kindley has been criticized for aspiring to a Bugliosi-like posture. That criticism seems misplaced to me. Lawyers are free to pick their clients any way they choose. If Kindley and Bugliosi have more fastidious tastes for factual innocence than I possess, I begrudge them nothing.

I confess to a certain sorrow over Kindley's view, however. I love People v. State as a blog devoted to libertarianism. I learn things reading his page. I am hoping he becomes more of a libertarian rather than less. If he does, perhaps factual guilt or innocence will become irrelevant to him too.
Comments (9)
Posted on August 9, 2010 at 6:57 am by Tom G
When I took Criminal Law in law school, my profess...
When I took Criminal Law in law school, my professor said to those of us who intended to be defense attorneys to get used to loosing because most of your clients are guilty. But he said that is no reason not to zealously defend them. By being in the trenches and working to prevent the overreaching of the police and prosecutors you are working for justice–justice for the defendant, justice for the community, and justice for us all. Justice is not necessarily played out on one-on-one stage, i.e., criminal and victim. It is often played out in society by preventing police and prosecutors from overstepping their authority with the least sympathetic of our citizenry. Norm, keep up the good work.

Posted on August 5, 2010 at 12:50 am by John Kindley
No, unfortunately I can't take credit for what the...
No, unfortunately I can't take credit for what the John above wrote. Ditto, though.

Posted on August 3, 2010 at 4:42 pm by William Doriss
Thank you John (Kindley?). I was having trouble wi...
Thank you John (Kindley?). I was having trouble with this essay as well, but didn't feel qualified or motivated to rock the boat. Of course he [Norm] cares; we all know he does, in spite of what he writes in a momentary lapse of reason or an outrageous burst of lawyerly bravado. Ha! I wonder what SHG says about that? I know HE's not lacking for words.

Posted on August 3, 2010 at 3:38 pm by John
So, you don't care "at all".
Then what do you d...
So, you don't care "at all".

Then what do you do when the factually innocent client has no chance at trial? You advise him that his best bet is to plead guilty to a lesser offense. Then a factually innocent person has been convicted of something they didn't do.

And you "don't care" about that?

Or, you refuse to do that and advise him to go to trial - but then you lose. He's worse off than the first scenario, usually by a lot.

You "don't care" about that?

Frankly, I just don't believe you. It sounds sophisticated in a pugnacious, "I'm a tough criminal defense attorney" sort of way, and shocks people who are dumb enough to ask the cocktail party question for mild amusement's sake. But it isn't true, and you know it.

Certainly, you should care about evidence and tactics and strategy, from the very beginning. But that's not the issue.

Posted on August 3, 2010 at 7:56 am by Jeff Gamso
Shockingly enough, factually innocent people can't...
Shockingly enough, factually innocent people can't always prove it; sometimes they have no evidence, and sometimes the evidence they have is close to worthless - even if it's true. After all, the issue at trial is what the jury will believe, not what might or might not have happened.

And at least occasionally, factually guilty people have damn good arguments, and sometimes even evidence (even true evidence), of factual innocence.

Sorry, but I don't care at all whether my client is factually guilty or innocent. I care about what the available evidence will show, how I can use the prosecution's evidence to my client's advantage, and if I'm putting on evidence, how to do that.

Those are case by case determinations based on the evidence, not based on the factual guilt or factual innocence of the defendant.

Posted on August 2, 2010 at 9:57 pm by John
Personally, I think both Greenfield and Pattis' st...
Personally, I think both Greenfield and Pattis' statements are largely bluster. Justice neutrality is not even possible unless you remain mute: every argument is, at bottom, an appeal to justice. If you argue that the State has not proven its case and so the jury should acquit, you are arguing that the jury SHOULD acquit, and to do otherwise would be...what? Unjust, that's what.

The statement that the guilt or innocence of the client doesn't matter to the defense attorney AT ALL is simply false. No one actually believes that.

And the "I don't get to decide guilt or innocence" claim, while of course true, is a device to lessen personal responsibility for the outcome. "We defend." Well, then, as long as you do a great job and you're aggressive and thorough and meet some God knows what criteria of professional competence - as long as you provide "quality representation", which, unlike the outcome - and not coincidentally - is something you have control over, then a bad outcome is not your fault. You are only a "player in the system". You can't control the outcome, so how can you have any responsibility for it?

Generally speaking, representing guilty people and innocent people is completely different, tactics and strategy wise. Before a jury, you wouldn't have an innocence argument, well supported with good evidence, and then alternatively throw in a bunch of technical arguments that the State hasn't proven its case, too. That would be stupid, and you'd generally lose a winnable case.

And let's face it, the client that has a good innocence argument well supported with evidence is likely factually innocent.

So factual innocence matters a lot, no matter how you slice it.

And defense lawyers shouldn't become too enamored of libertarian political theory when jurors are picked from voting lists. You're not likely to get ANY libertarians in a jury pool. Right or wrong, people who vote have a fundamental belief in government, and you have to contend with that in other ways, most of the time.

Posted on August 2, 2010 at 10:00 am by John Kindley
I'm sure Bugliosi agrees with Pattis and Greenfiel...
I'm sure Bugliosi agrees with Pattis and Greenfield that the proper role of the criminal defense lawyer is to get someone off no matter what (within the bounds of the law). For that reason, he would decline to represent certain defendants when he thought he could not do so in good conscience or when he thought he could find a better use for his time. It's worth noting that Greenfield has similarly gone on record as stating he will not represent those accused of committing sexual crimes against children (I don't recall whether or not he conditioned that self-limitation upon whether he believed they committed the crime).

Posted on August 2, 2010 at 9:07 am by Henry Berry
I think there's some middle ground between the abs...
I think there's some middle ground between the absolutist view of Pattis and Greenberg (I just read a post at his Simple Justice) of the role--and by implication the virtue--of the defense lawyer. Both Pattis and Greenberg believe--contra Bugliosi--that the role of the defense lawyer is to get someone off no matter what (within the bounds of the law). Greenberg says he is untroubled by using disingeuous, etc., means if they would work. Pattis believes getting someone off is a counterbalance to the power of the state. However, it seems to me that if defense attorneys are going to rationalize whatever they do in seeking what they regard as a professionally (as with Greenberg) or socially (as with Pattis) good, virtuous end, then prosecutors could conscionably use the same disingenuous, etc., tactics or hold similar, though diametrically opposite, beliefs as Pattis (which in fact some prosecutors do).

Pretty invovled discussion--and I'm not going to take up more space for now. But you may see where this is going--I find complaints by defense attorneys about questionable ethics, bogus cases, and obviously perverse aims and often outcomes by prosecutors somewhat puzzling given their avowed (and openness is always appreciated) explanations of the work they do and why they do it.

Posted on August 2, 2010 at 8:33 am by John Kindley
When you wrote in a comment on my blog that it...

When you wrote in a comment on my blog that it appeared to you that Bugliosi had "no fear of the state" I thought you might be referring to the fact that he wrote a book seriously accusing the Justices who decided Bush v. Gore of treason and another book seriously advocating the prosecution of Bush for murder (for starting the war in Iraq based on false pretenses). It seems to me that when he wrote those things he wasn't writing "as though the state were the church."

When I link Justice with the role of the criminal defense attorney I primarily have in mind our war against the injustices of the State. The State is the largest criminal organization on the planet. Its crimes dwarf those committed by private persons. But yes, private persons commit real crimes and real injustices too. I hate crimes committed by private persons for the same reasons I hate crimes committed by the State. Nevertheless, it is Just that we defend people accused of crimes regardless of their guilt or innocence because, as you say, "it is better for ten guilty men to be set free than for one innocent person to be convicted."
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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