"Why the defense of those accused of crimes?" It is a natural enough question. I stop to ponder it today after being accused of a species of immorality for my chosen profession. Defending those accused of rape, murder, robbery, theft, the abuse of children: Who but a monster would chose to walk where demons fear to tread?
Why? Why this choice, when there are so many paths?
I can offer five reasons. Each reflect personal and idiosyncratic convictions and perspectives.
On a personal level, I am the son of an outlaw. My father lived outside the law. He was an illegal immigrant who snuck into this country and died an old man living under false papers. He lived for years as a professional armed robber. He once shot a man and fled to Chicago from Detroit to avoid the law, taking with him the young woman who would become my mother. When he tried to live within the lines the law recognized, he couldn't. He deserted my mother and me, setting the stage for a single mother's struggle to raise a boy into a man. We lived a nomadic sort of life for several years. When my mother found new roots with another man, he was a violent sort of person. I once stood guard at the rear of our home in Detroit with a rifle; he was out front with a pistol. We were laying in wait for men who vowed to come to kill him in retaliation for his beating of one their friends with a baseball bat. I, of course, hoped the men would come to the front of the house and do away with my mother's beau. But I know I would have shot to kill in fear that night had the men come to our home's rear. They never came. But I learned a lot as a kid about living outside the law. The law, it seems to me, is the stuff of polite fictions: the happy-ever-after fantasies people on the other side of the tracks can afford to believe. Belief was a luxury we did not have; neither do most of my clients have it.
Philosophically, I remain stunned by the fact that we create governments and then drape them in the fiction we call the state. The state simply does not exist. I have defended many men and women from prosecution by the state and federal governments. But I have never met the client prosecuting on the other side of the aisle. That is because that adversary does not exist. We pretend it does, and this act of make-believe is necessary to our survival. But my clients have a pulse; they can be held accountable for their actions; they are not the product of necessary fancy. Individuals are real; no one is the sum of their worst moment. Permitting the state to label a man as evil merely drapes one fiction in another. All have sinned and fallen far short of those images of perfection we hold so dear. Defending is necessary if the rule of law is to exist. Without defense, the law would be far worse a tyrant.
Sociologically, I fear the group, any group. I call it the Rule of Eleven. Put any ten folks together and they will get along well enough. In time, they will settle upon rules, conventions and habitual ways of interacting. But once the group grows, adding an eleventh man, strange things start to happen. There is an inside and an outside, orthodox and heterodox, haves and have nots. I gravitate toward David every time. The complacency of the group terrifies. Better to live free and alone than fat, sassy and humming along with those comfortable in their own skin. I grew up on the outside looking in; that's where many clients live.
On moral grounds, I have never met a person accused of a crime who was so repulsive, so far removed from the world in which I live, that I could not imagine myself committing the same or similar crimes. Am I capable of anger? Yes, then how how removed from murder am I? Is lust real? If so, then how near to a crime of sexual passion? Do I know greed? Then why not theft? The seven deadly sins are not a class of acts that others commit: They are a series of temptations to which any and all of us are prone. When I see people demand the killing of a man convicted of murder, I see new murderers, the same passions, although this time overlaid with sin of self-righteous pride, that provoked a man in an instant to kill. The criminal and the citizen are not so different: one acts on impulses all share; the rest stifle urges they cannot admit exist. Is that way we hate the criminal? Do we envy. another's sin, his comparative freedom to act?
Finally, although I count myself a man of unclean lips and a pagan, I am much moved by the historical Jesus. He was a rabbi, a lay preacher in a culture far different from our own. When he took his ministry public, he was criticized for spending time with sinners, the tax collectors and prostitutes of his time. Why would a righteous man do such a thing?, the tongue-cluckers asked."It is not the healthy who need a doctor, but the sick," Luke reports Jesus as saying. And so it is for me, and for other criminal defense lawyers. Why do we defend the damned? Because they are the ones who need a lawyer.
I have no greater truths to teach. I cannot counsel one on how to become righteous. I do not live humbly and in obedience to my god. My universe is silent, but the cries to which I respond resound in space and time. They are the cries of men much like me: flawed, sinners, sometimes fools. All in need of protection from an angry mob. Often in need of protection from men and women acting as though the fiction they pretend to represent is something real and enduring. I represent those accused of crime because crime is what I know. It is not glamorous; it redeems no one; it often results in tremendous harm and pain. I protect people from the harm others seek to do to them.
I represent the accused because when I was a boy in need of a father's hand, there was only silence. That silence terrified me. I see my own boyish fear in a client's eyes. I may not be able to redeem the terror of my youth. And I know I cannot make right ancient wrongs. But I know there is humanity in the wake of catastrophe, and that one sorrow will not erase another. I represent that accused because I cannot do otherwise, and because I do not take such fairy tales as justice, the state, and notions of a community of reasonable minds working together in unison for common ends, seriously. Terror is real, and few are as terrified as a man or woman standing alone in the face of angry community seeking to right what cannot be righted by permitting prosecutors to pretend that the criminal law does anything other than trade senseless pain for senseless pain.
Happy New Year to the defenders out there. Many struggles!