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.