Legal Research

"The Question: Seven Answers"

This post was written by Mark Bennett: "Here is The Question: Why do you defend people who you know to be factually guilty?

The question is often phrased as "How . . ." or "How can you sleep at night when you . . ." but those demand smartass answers like "very well" or "on a pillowcase full of hundred-dollar bills."

Typically, the laypeople (in which group I include civil lawyers and prosecutors) asking the question don't understand the niceties of legal and factual guilt, so the question is usually ". . . people you know to be guilty," which demands the answer, "they aren't guilty till they're proven guilty," which is not smartass but will be seen as such by people who don't understand that "guilty" is a term of art.

The Question assumes something that is true only rarely, if ever: that the criminal defense lawyer knows what happened. Some reject the premise. It's not the criminal defense lawyer's job to decide whether his client is guilty or not. Even if a client swears to have done the deed, the lawyer can and should doubt--clients lie to us, and do so for the strangest reasons.

But, for purposes of this post, accept the premise.

Why does The Question matter? Criminal defense lawyers don't agonize over it--they just know. Most of the non-criminal-defense-lawyers asking the question will never, no matter how we answer, understand.

...

So this post is an effort to categorize the various answers to The Question, with examples. I'll update it as time goes along, as a reference for those who follow after.

I. The Sixth Amendment Answer...

II. The Flawed System Answer...
III. The Biblical Answer...

IV. The Compassionate Answer...

V. The Cog-in-the-Machine Answer...

VI. The John Wayne Answer...

VII. The Martin Luther Answer...

In other words, wir können nicht anders.

Full text and active link are available at the source site listed below.

Source: Defending People, 8 January 2010

Copyright © 2010 Defending People

Full post as published by Stark County Law Library Blawg on January 13, 2010 (boomark / email).