The line really isn’t all that hard to recognize, but when it is crossed, it forces wonder about how often such transgressions occur. It would be so easy to do. Sixty-three-year old Charles Daum, a criminal defense lawyer in Washington, D.C., is accused of manufacturing evidence to assist a client at trial. Daum, a solo practitioner, and two private investigators, now face criminal charges.
Much though I am suspicious of the government -- indeed, most days it is fair to say that I hate this imperious abstraction and its capacity to destroy whatsoever stands in the way of its minions, those officious peck sniffs who parade around pretending to act in the name of a client with no corporeal existence, no presence in the world save that conveyed by the sinister pronouncements of pettifogging bureaucrats – we seem incapable in a society of any complexity of living without it. Call it a necessary evil or fiction.
But truth and integrity must count for something, at least in the law’s trenches. Or am I simply naive?
Daum was defending a man accused of the illegal possession of narcotics. He was on the front lines of the wasteful war we wage daily on drugs, a war that incarcerates selectively, fails to address the root causes of demand, and flourishes in the nation’s prisons and law enforcement world as a gigantic make-work enterprise. The law on drugsis a sick joke, a twisted dream, yet another form of an old and ancient institution on these shores – the plantation. These laws should be repealed; they represent a living death penalty for far too many Americans.
So doesn’t the end of repeal then justify the means? What’s a little lying when fighting evil? If the Government’s allegations against Daum are true, that seems to be the mind set that justified the creation of a false lease to try to persuade jurors that the defendant lived at a location other than where the narcotics were found. That seems to be the excuse for photographs of fake evidence in an effort to pin the crime on some other dude, in this case the defendant’s brother. Or perhaps the motive was simple venality.
I’ve always been troubled by the accusations against Clarence Darrow in the McNamara case in Los Angeles early in the early twentieth century. Darrow was accused of bribing jurors in the case, which involved allegations that two brothers bombed the Los Angeles Times building, killing a score of workers, as part of bitter labor-management disputes involving the Chandler family, the owner of the Times. Darrow was acquitted at one trial involving one juror; a separate jury hung; the state opted not to try Darrow again so long as he committed never to practice law in California again. The evidence against Darrow was substantial.
Darrow frequently would say such things as "there is no justice in our out of court." Or, "justice is what comes out of a courtroom." Taken together, these statements sound perilously like an admission that the ends justify the means. Darrow was on the front lines of a different sort of war a century ago. Did he decide that in the struggle of labor against management a little deception, a little corruption, was justified? It sounds to me as though he did.
Yet lawyers are never witnesses in the cases they try, at least we are not supposed to be. The rules of professional conduct extant in every state prohibit lawyers from serving as a witness in a case in which they are the advocate, save for trifling questions of fact. This is both liberating and an impediment.
I’ve long subscribed to what I call the Jimmy Hoffa rule. I will defend to the death anyone who walks into my office with the blood of yesterday’s events on his collar. Walk in, tell me where you buried Hoffa’s body. That’s old news. My job is to defend people against accusations, whether those accusations are well-founded or not. I will keep the secrets of a client. This is liberating. I am a co-conspirator in no crime. Hence, the liberation.
What I cannot do is permit myself to become a tool, a participant, in any new offense. I cannot offer to hold the remains of corpse, or to hide it in the face of an inquiry. I cannot agree to destroy evidence, or, as Daub is alleged to have done, to create evidence I know to be false. That is a limitation on my role as advocate.
Years ago, I discussed a difficult case with a young man. He wanted to know his odds. "Your best hope is that the witness against you disappears," I said, with perhaps a little too much conviction. When the client responded by asking "How do I make that happen?", I knew I was on a line that should not be crossed. I suspect many a lawyer has tiptoed up to this line and dangled a toe or two over it just to see what would happen.
Daub is accused of crossing this line big time. I confess to being surprised by the allegations. I do not know Daub, and I cannot say whether the act is in character. All I can say is that defense lawyers nationwide have a duty of candor toward the tribunal. We are not to present evidence we know to be false. That is often a hard line to recognize: how do we decide which witnesses to believe or disbelieve? I tell my clients over and over again, I am an advocate, not a witness. But however that line is limned in an individual case, I am certain that the creation of evidence, the fabrication of items one knows to be false and the presentation of same to a jury, is a transgression that the law cannot forgive.
I hope for Mr. Daub’s sake the allegations are false.