There is a moralistic tinge to the practice of criminal law that makes no sense. We shroud the misdeeds and allegations that land a person in criminal court in terms of choice, responsibility and just desserts. That seems to miss the point. There is a grim necessity to a good deal of what goes on in the criminal justice system. It is hard to face, so we pretend that things could be otherwise. Ferdinand von Schirach harbors no such illusions.
Schirach is a criminal defense lawyer in Germany. He is also an exceptional writer. His first book, Crime, was published in German in 2009; it was published in translation in the United States in 2011. A second volume, Guilt, was just published in the United States. A good friend suggested I read them. I’ve not yet read Guilt, but Crime hooked me.
A sister drowns her brother in a bathtub. Murder, mercy or necessary sorrow? A young prostitute dies bearing the semen of her high-powered lover who left her moments before her death; the lover lies about his relationship with her. Consciousness of guilt, or mere coincidence? A man kills two attackers with lethal precision, but refuses to utter a word to the police about it, not even giving his name, even to his lawyer. Self-defense, or a rare glimpse into a world of truths darker than those we care to hear?
Clients, families and friends tell criminal defense lawyers they ought to write books. The stories that cross the lintel of a busy office titillate and intrigue. Amid the commonplace order of our lives erupt passions and acts that stun one into silent submission: we are the playthings of larger powers. The practice of criminal law is enough to drive a person to prayer; it matters not whether the universe harbors a listener. Schirach writes his prayers to the silent watchman keeping vigil over all that we lose, again and again.
"Whether the lawyer thinks is client is innocent is irrelevant. His task is to defend the accused, no more, no less," he writes, and, of course, he is right. Yet clients often seem to believe otherwise, perhaps fearing that if a lawyer thinks them guilty, the lawyer will not defend them. A boy who kills another still has a long life ahead of him; it is that life his lawyer defends.
We are driven by things deeper than trifling logic of moral accountability. "Is it not everyone’s deepest desire to return to those they love?" Desire, not the calculating claims of reason, moves us.
I cannot think of an American writer on the criminal justice system who writes with as deft a touch or as unblinking an eye as Schirach. Our fiction writers succumb to plots the resolve themselves or with characters capable of redemption. Nonfiction tells moral tales, extolling virtues and excoriating injustices, but rarely simply accepting the dire necessity of compromise. We like stories that complete a narrative cycle, that make sense, that teach. But sometimes the wheel simply spins. It is enough at such times simply to record the music of the spheres; we mustn’t try to hard to make melody of cacophony.
Schirach has a good ear. I’d like to see him work in front of an American jury. I wonder whether our demand for answers doesn’t sometimes blind us, whether we commit outrages of our own in the name of justice. Our grand trials are oftentimes less about the event presented before the court than the collective demand that something be done about the unseen sources of our discomfort. Watch the waves of print cascade after each incremental disclosure of some new evidence in the Trayvon Martin case, for example. We want to make the moment right, somehow, either for the killer or the victim. What if the real point is that the concept of right is simply a luxury we cannot afford when chaos comes calling?
I prefer to think of the law in terms of what I refer to as the Three Cs: conduct, concepts and consequences. What is this new case that darkens my door? What conduct has my client engaged in that leads him to me?
Then the next, and perhaps more crucial, question: What concepts are others using to describe my client’s conduct? Into what box is a prosecutor, a school administrator, a neighbor trying to press my client? How can I keep that box from enclosing my client, and smothering him?
Finally, should a conceptual box be successfully fitted around my client, what can be done to limit the consequences to my client? A lawyer’s job is ever and always to restore a client as best as he or she can to the condition in which the client was before they sought legal advice. Notice that questions of moral worth, of right, of wrong, of justice, do not intrude into this equation. Lawyers aren’t priests, social workers or psychologists. That’s not our role. I fear when we permit ourselves the luxury of these roles, we poorly serve the men and women who need us.
Schirach appears to practice law in this manner. Crime illustrates an easy familiarity with ambiguity, and a deft touch at storytelling. I am intrigued, even as I wonder how much liberty he took with his material: How much is narrative fancy required to tell the story? And just how did he obtain waivers of the attorney-client privilege to tell us as much as he did?
I’m a Schirach fan, now. I will report soon on Guilt, I suspect. Then I will await his next volume. His vision is dark but true. He sheds necessary light on a world or murky and messy facts, the sort of facts that define us all.