Legal FAQ #1 - Representing Murderers
Finally, something legal
It figures. As soon as you make a New Year’s resolution to write more, you get so busy you don’t have time to write. . . Anywho, here’s something that’s been in the making for several weeks.
Lawyers get asked lots of questions. They can’t give legal advice in most situations, unless it’s their client asking, and often the response to the questions they can answer is the unsatisfying “it depends.”
However, Not Legal Advice recognizes that coming to a quasi-legal Stack and being told “no legal questions please” is a total bummer, the name of the Stack notwithstanding. So, in an effort to answer some questions you may have pondered, this article marks the first of what will likely be a series of articles attempting to answer some of the most commonly asked legal and legalish questions.
So, what is one of the most common legal questions attorneys get asked?
How Can You Represent A Murderer?
When I presented at Career Day at my kids’ elementary school, a fifth grader posed this question. Boy, heavy questions start young these days. It actually caught me off guard and I had to make a joke about the precocious inquisitor to buy some time before I regained my composure enough to answer.
The question goes to a conflict of values and it is one that has dogged many an attorney. On one hand, you have to put your best foot forward to represent your client. On the other hand, you gotta be honest while also defending someone you know did one of the most morally reprehensible things a person can do.
So, what’s the answer? Well, I’m going to say some very lawyerly things to set the stage.
Lawyerly comment #1: When you represent criminal defendants, not all of them are guilty. Innocent people are charged with crimes, innocent people are convicted of crimes, and, worst in the U.S., innocent people have been executed over the years. So, just because you are representing someone accused of a heinous crime, it doesn’t mean they did it or there may be mitigating factors.
Lawyerly comment #2: OK, for the sake of this article, let’s say you are representing someone you know dead to rights has murdered another person. No extenuating circumstances. No mistake about it, they did it.
The short answer is: you must have faith in the system.
What?!
If you gasped, scoffed, or scratched your head at that last sentence, you’re not alone. But it’s true. In order for the system to function properly, everyone must play their part, even the defense attorney who knows their client is guilty.
To be sure, the system isn’t perfect. In fact, it’s far from perfect (see above re: innocent people being convicted and executed, among other things). However, I’m not aware of any obvious, major changes that could be made to ensure that more guilty people are brought to justice while also not capturing more innocents in the process.
The system has built in numerous safeguards to prevent innocent people from getting ensnared in the net of justice. Some notable ones include the presumption that the accused are innocent until proven guilty, the beyond a reasonable doubt evidentiary standard, and the right to silence (i.e. right against self-incrimination). Also, defendants have the right to know the crimes for which they are charged (habeas corpus) and a right to a speedy trial, so they aren’t languishing in jail forever.
OK, so what about representing a murderer?
Among these fundamental rights is the right to counsel during a criminal proceeding enshrined in the Sixth Amendment. I think we can all agree that if someone had to go through the criminal process and a trial without any legal help they would be up a river without a paddle. The U.S. uses an adversarial approach where two parties square off, the State/prosecutor vs. the defendant, with a third party evaluating the facts (judge or jury). This approach is designed to elicit the best arguments for both sides and allow a neutral body to apply the law fairly. If a defendant is not afforded an attorney, you’ll end up with a legal knowledge imbalance that will undermine this approach.
If attorneys were only available to those who could afford them, you would see a major discrepancy in criminal outcomes based on the wealth or status of the defendants. Yes, yes, you could say that exists even now, but it would be worse if we didn’t provide counsel to whoever can’t afford it. Defendants have the right to reject counsel and go it alone, which in lawspeak we call pro se, but it rarely turns out well for the defendant.
So, somebody’s gotta represent the defendant. The defense attorney’s role, even when their client is guilty, is to ensure that their client’s rights are protected along the way. All people have rights that must be respected. If the other players in the system–police, prosecutors, judge, court officers, jury, etc.–are doing what they are supposed to do, then you should get the correct verdict. This is the ultimate comfort a defense counsel can take: if they play their part and everyone does the same, a just result should follow.
What else?
One other part of this worth mentioning is the attorney-client privilege: the concept that an attorney is not allowed to reveal information communicated to them by their client, except in rare circumstances. However, that is a topic for another time. For now, let’s just say that if attorneys could spill the beans after learning their client murdered someone, other accused–including many wrongfully accused–would not be as inclined to tell their attorneys everything they know. If a client isn’t completely honest with their attorney, it hampers the attorney’s ability to provide a full defense.
Let me know what other legal-ish questions you have. There is a lot that Not Legal Advice could explore. But remember, it’s not advice.