"I know that a certain percentage of folks I send to prison are, in fact, innocent," he said. "I just don't know how to identify who those folks are."
"Then how can you do what you do?" I asked.
"I believe in the adversarial system," he replied. "If you do your job, then the risk of my making a mistake is minimized."
The speaker was a senior prosecutor here in Connecticut. We were discussing why he was deciding to take a case to trial, a case in which I was persuaded my client was not guilty. I won't name the prosecutor or his jurisdiction for fear he'd never speak candidly to me again if I did.
The exchange highlights an important truth about the criminal justice system: Lawyers are not witnesses, but advocates. If each does his or her job well, we hope, in most cases, most of the time, justice will prevail, meaning that the right folks will be convicted.
But we know that mistakes occur. The Innocence Project reports exonerations for about 300 people since 1989, based largely on the use of DNA evidence. Impressive social science research demonstrates that eyewitness identifications can be unreliable, that defendants can, and do, confess to crimes that they never committed, and that people of good will can err.
This growing awareness of the criminal justice system's fallibility is hard to square with Justice Antonin Scalia's shocking observation in a 2009 case: "The Court has never held that the Constitution forbids the execution of a convicted defendant who has a full and fair trial but is later able to convince [another] court that he is 'actually' innocent."
Every time I read that quote, I am stunned. The Constitution does not prohibit the killing of the innocent? Placing too high a premium on finality of criminal judgments can transform that law into something hideous. Did you know the law even permits the killing of the mentally retarded? In one famous case, the Supreme Court once condoned the execution of a man so impaired by a brain injury that he told prison guards to save the pie from his last meal so that he could eat it after his execution?
The law rarely yields certainty. Indeed, prosecutors go to great pains during jury selection to make sure jurors understand the state need prove its case by something less than certainty. The standard for a criminal conviction, proof beyond a reasonable doubt, is the law's highest, but it is not certainty.
I was reminded of all this the other day reading a wonderful book edited by Abbe Smith and Monroe Freedman, "How Can You Represent Those People?" Smith and Freedman are long-time educators and criminal defense lawyers who collected a series of essays in which contributors were asked to address what criminal defense lawyers call "the cocktail party question." That's when friends, neighbors, or, perhaps, new acquaintances, approach you, often emboldened by a drink, to ask, with just a tinge of skepticism, maybe even hostility, how you can represent the obviously guilty.
Answers to this question vary, and range from philosophic purism - I do not know a client is guilty or not, the jury decides that, to idealism - the state must be checked at every step, lest it grow too large, too bold, too aggressive, to the detriment of innocent and guilty alike.
I defend because I am persuaded that no one is the sum of their worst moments. Whatever a client may have done to land him in trouble with the law, there's so much more to him or her than the state's accusation. Is the isolated act the defendant is accused of committing really worth locking him up for decades, or even killing him? Almost never.
Perhaps I come by this attitude by way of my heritage. My father was an illegal immigrant, sneaking into the United States from Canada as a child with his father. They both came from Crete in search of opportunity.
My father found opportunities, all right. For years, I'm told he made his living as an armed robber, taking cash payrolls at gunpoint in much the same manner as did Sacco and Vanzetti. Unlike them, he never got caught, even when he shot a man and then fled from Detroit to Chicago to start a new life. He took the young woman his was seeing with him. She soon became my mother.
He disappeared from my life as if by black and horrible magic when I was eight, and I did not see him again for almost 40 years. When we were reunited, he was filled with excuses that didn't make sense. I couldn't summon much love for him -- affection had long fallen through the bottom of my broken heart, leaving a taint of bitterness I carry like a bad-luck charm to this very day.
My mother and I walked the wild side for several years after he left, migrating from the homes of relatives, to a rooming house, to an attic, to furnished apartments. All around me I saw ordinary people struggling to make sense of their surroundings, and who, given their lack of power, prestige and wealth, were easily ignored.
Being a criminal defense lawyer means making sure the accused, the damned, as Clarence Darrow referred to folks on my side of the aisle, are heard. I suppose criminal defense is, for me, a form of catharsis. When my mother's and my world fell apart after my father's desertion, no one heard my mother. A bankruptcy resulted in the loss of her keepsakes and most of our possessions. For a time, I was sent to live with relatives while she regrouped alone. When I cried, there was no one there to listen.
The world can be a hard place. We do cruel things to one another. The criminal causes pain by breaking the law. Society exacts its measure of pain in response. No one is the sum of the pain or she has caused. No one.