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In Defense Of Criminal Defense Attorneys

A New York City Attorney faced with the unenviable task of representing a child murderer provides us with an object lesson in why attorneys committed to a zealous defense of individuals charged with a crime are essential in a free society:

The death threats and hate mail, she says, have slowed, and she keeps her office door unlocked in defiance. There, Jennifer L. McCann sits behind her desk, wearing leopard print pumps, poised for an argument.

Ms. McCann chose to defend Levi Aron, a hardware clerk from Brooklyn who is accused of a crime that gripped the city this summer: the kidnapping, killing and dismembering of Leiby Kletzky, 8, who got lost walking to meet his parents in July in the Hasidic Jewish enclave of Borough Park.

“People assume I’m O.K. with a young boy being murdered because I represent the defendant,” Ms. McCann, 30, said recently in her office in Garden City, N.Y., which she opened in March after four years of practicing criminal defense law for a local firm. “To me, that’s pretty vicious. They have to understand, I’m not all right with people being murdered or with crime. I’m all right with defending constitutional rights.

“If he’s guilty, he will be convicted. And that’s it. But my God,” she added with gritted teeth, “it’s going to be legally.”

Not surprisingly, McCann is getting criticism, and worse, from various members of the public and, as the article goes on to detail, she’s brought some of it on herself due to a confrontational style that doesn’t seem to take much note of public opinion (an attitude not uncommon among criminal defense attorneys I’ve found). However, her attitude as expressed in the above quote is absolutely correct, and it’s time that the societal disdain for attorneys who provide a needed service in our justice system comes to an end.

The Sixth Amendment guarantees every person accused of a crime the effective assistance of counsel. The Seventh Amendment guarantees the right to trial by jury. Both of these provisions, as well as the other parts of the Bill of Rights, and the two centuries of case law that have expounded on them and interpreted their meaning and application, stand for the proposition that each person accused of a crime is innocent until proven guilty, and they are entitled to require the state to prove the case against them beyond a reasonable doubt. It’s the job of the criminal defense attorney to ensure that those rights are protected by being the person who presents the court with the arguments and evidence that tends to call the state’s case into doubt. There are limitations, of course. A defense attorney, any attorney actually, is not permitted to lie to the Court by presenting false testimony or evidence or misrepresenting the law, and they aren’t permitted to knowingly allow their client or any other witness to permit perjury. All of this is designed to ensure as much as possible that only someone who is actually guilty of a crime is punished, even if it means that someone who is factually guilty goes free because of what some people derisively call “technicalities.” Those technicalities are your Constitutional rights.

Other than the occasional traffic offense I don’t practice criminal law as much as I did when I was a young attorney and taking on criminal cases was a good way to get experience in the courtroom. Even then, I wasn’t exactly handling controversial cases. In those days, though, I’d sometimes get friends or family ask me how I could defend someone that I knew to be guilty. My first response would usually be something along the line that I didn’t know someone was guilty until the Court ruled upon it, but that rarely satisfied someone whose exposure to the criminal justice system begins and ends with Jack McCoy on Law & Order. In the end, my response would be something along the line of McCann’s, although hopefully more tactful. Everyone is entitled to have their rights defended, whether it’s the Brooklyn child murderer (for whom the only real question is whether he’ll spend his life in prison or a mental hospital) or the guy who gets picked up on a DUI at 11:45pm on a Saturday night.

I realize that attorneys are the butt of everyone’s jokes, heck most of them are funny. However, it bothers me when I start seeing the role that they play in the legal system demonized in the manner McCann has been, because I don’t think it’s too far of a trip from that to the attitude that people accused of crimes don’t really deserve to have their rights protected. If we ever get to that stage, we’re all going to regret it.

H/T: Ann Althouse

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Tsar Nicholas says:

    Not to nitpick but your reference to the Seventh Amendment plainly is erroneous in this context. In criminal cases it’s the Sixth Amendment itself that provides a jury trial right; the Seventh Amendment applies to civil cases. Also, FYI, the Sixth Amendment says nothing about “effective” assistance of counsel. That’s a SCOTUS interpretation, largely pulled out of the Justices arses.

    In any event, a couple of points are worth noting:

    1. Betts vs. Brady never should have been overruled. It was a monumental error when the Warren-led SCOTUS forced states to provide public-money counsel to all indigent defendants, regardless of any showing of special needs for the assistance of counsel. The result has been the development of a cottage industry of shysters and untold numbers of miscreants not being convicted of obvious crimes. You don’t have to connect too many dots to realize the implication on crime rates and the related losses to various communities of victims.

    2. Anyone who voluntarily and not by court order defends someone like Levi Aron is mentally ill. Nothing more, nothing less. Look, it’s one thing for a public defender upon court appointment to engage in that defense. That’s their job. This Jennifer McCann, however, has no direct obligation. She’s pure scum.

    Like or Dislike: Thumb up 1 Thumb down 5

  2. legion says:

    @Tsar Nicholas: Riddle me this: is it better for an innocent man to be punished, or to let a guilty man go free?

    Trick question – it doesn’t matter what you think. As Doug correctly points out, the Constitution, via the Bill of Rights, specifies that guilt must be proven, regardless of what the accusation is or who makes it. Period.

    Don’t like it? Get the hell out of my country. Your point #2 only underlines my disgust with you as both a citizen and a human being.

    Like or Dislike: Thumb up 4 Thumb down 1

  3. Ernieyeball says:

    DM sez : “…I don’t think it’s too far of a trip from that to the attitude that people accused of crimes don’t really deserve to have their rights protected. If we ever get to that stage, we’re all going to regret it.”

    zar nik sez: “This Jennifer McCann, however, has no direct obligation. She’s pure scum.”

    Looks like the Tsar is already at Doug’s “stage of regret.”

    What the Tsar probably doesn’t care about (yet) is that if Levi Aron can be deprived of a zealous defense, so can the Tsar and everyone else.

    Like or Dislike: Thumb up 3 Thumb down 0

  4. MM says:

    @Ernieyeball:

    What the Tsar probably doesn’t care about (yet) is that if Levi Aron can be deprived of a zealous defense, so can the Tsar and everyone else.

    Most of the “if you haven’t done anything wrong, you have nothing to worry about” crowd has a major blind spot there.

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  5. mattb says:

    @Ernieyeball & @MM,

    These discussions always bring Robert Bolt and “A Man for All Seasons” to Mind:

    Roper: So, now you give the Devil the benefit of law!
    More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    Roper: Yes, I’d cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned ’round on you, where Would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down (and you’re just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    Like or Dislike: Thumb up 2 Thumb down 0

  6. Ernieyeball says:

    MM sez: Most of the “if you haven’t done anything wrong, you have nothing to worry about” crowd has a major blind spot there.

    Yeah. And they can tell that to Allen Kephart…oh, wait, no they can’t. He was killed by the police at a traffic stop. He didn’t even get a chance to have a scummy defense lawyer represent him.
    http://reason.com/blog/2011/07/05/reasontv-the-killing-of-allen

    @mattb. Of course Lucifer lives with us all. See Rolling Stones 101. Sympathy for the Devil.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. PogueMahone says:

    I think a good remedy for Ms. McCann’s plight would be for a reinterpretation of her job description.
    If I were a “criminal defense attorney”, I would first label myself as a “civil rights attorney.” Then, if pressed, I would admit to being a civil rights attorney who specializes in areas for which those who have allegedly committed a crime.

    I asked a friend of mine who is a “criminal defense attorney” about what percentage of those he represented are actually guilty. He said “about 95%.” I asked, “what happens to them usually?” He said, “they go to jail.”

    And of the 5%? He said, “sometimes.”

    Cheers.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. OzarkHillbilly says:

    a friend of mine was a Public Defender in East St. Louis for years. Her final straw? She had a client who got busted for “Distributing a controlled substance”, third strike, he was out. His offense?

    He shared a joint with the whore he had just had sex with. (she was a DEA informant)

    And he was going to do 12 yrs (or something like that)

    WTF????

    Like or Dislike: Thumb up 0 Thumb down 0

  9. John Burgess says:

    Contrary to the excellent arguments against ‘named laws’, I propose the ‘Nancy Grace Law’ that would immediately disbar any attorney who publicly fails to recognize constitutional rights. For purely venal reasons, there are those who would rather earn a buck than see justice–even that limited by the legal system and Constitution–done.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. anjin-san says:

    WTF????

    Real simple. The criminal justice industry needs defendants & prisoners to keep the funding going. The government needs the war on drugs because it is a very useful tool for expanding government power.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. If some one is not guilty he must not be feared. There may be situation when you feel that things are against me but we must believe on our system . The court will take the right decision.

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