Follow up

First, thank you for the congratulations, everyone! I appreciate it!

Second, I had a really interesting comment from Historiann that I wanted to respond to in a little more detail, just to clarify what I meant in my last post. Historiann wrote: 

Something you wrote about defense attorneys gave me pause. Specifically, this: "I saw someone write just recently that what they like about being a criminal defense lawyer is that it's very clear - they're not working to serve justice, they're working to serve their client." I would never want to hire an attorney who thinks like this, should I ever find myself in need of a criminal defense lawyer. My understanding from the defense lawyers I know is that they're very clear that they are indeed serving the cause of justice by providing a vigorous defense for their clients against the awesome powers of the state (which you note.) Maybe the attorney you quoted is burned out, or needs a vacation or something. I know it's a bummer having to defend people you believe are probably guilty, but the defense attorneys I know who do well are really committed to the idea that everyone needs and deserves the best defense possible, and that regardless of a client's guilt or innocence, their work serves the cause of justice.

(I run with a district court judge here in Weld Co., CO, and believe me: although she sometimes feels like she can help people and families, at least when on the family docket, I don't think she feels like she's serving the cause of justice so much as ensuring that the rules of the system are fairly and reasonably applied. That's really the best you can do, even as a judge.)

I think I represented the person I cited unfairly, by not expressing their idea clearly. The context was that they were talking about the different reactions they get from opposing counsel, when they take every advantage they can in litigation - and here I don't mean illegal/immoral advantages, just that where there is a strategic advantage, they (the defense attorney) are going to take it. It's not personal - it's just that the job is to serve their client. Apparently some prosecutors react as if it's personal or something.

The person I was citing would completely agree, I think, that providing a defense against the power of the state is serving justice. It's just that they fulfill that role by thinking only about their client and how best to advance the client's interests. And they don't have to really think about anything else.

However, prosecutors are in a different position. They have to think first about whether to bring charges, and what charges to bring. Then they think about what to do at trial actually to prove those charges. (I'm sure these two things are much more intertwined that that suggests - you're going to bring charges that you believe you can prove at trial - but they're still two sort of different processes.) Defense attorneys don't have to weigh the issues in that first step - they just have to respond to the charges.

So in that respect, I didn't mean to say that defense attorneys aren't serving the cause of justice - or that the person I cited remotely meant that they don't serve the cause of justice. It's just that defense attorneys don't have to think very much about what that is in the course of their work - they can focus solely on what will work best for the client. They don't have to ponder what best serves the cause of justice, because they know that is to fight for their client. In that respect, their work is really clear - arguably clearer than what a prosecutor has to do.

So yes, everyone deserves the best defense possible, and providing that serves the cause of justice. And I completely agree with this, as, I'm sure, the person I cited does too; I just didn't represent them especially well. (In part, because I think defense attorneys take that proposition so much for granted that it doesn't need to be expressed, so I elided it.)

That said, as much as defense work serves the cause of justice by ensuring the system works fairly, it requires a certain mindset to be able to put that principle into effect even when you're dealing with a defendant who you're quite sure has done a lot of nasty things. I think that work has to be done, and I have immense respect for people who do it. But I don't think it's for everyone. (The flip side is that prosecution also requires a certain mindset, to be willing to enforce laws even if you don't agree with them - unless, of course, you're in a senior enough position to set policy and determine you're not going to prosecute certain crimes, but your average prosecutor isn't in that position. Similarly, some defense attorneys won't take certain clients, but of course, if you're a PD, you don't have that luxury.)

Also, I agree that the role of judges is to make sure the rules of the system are fairly and reasonably applied, and that often, that's what serving justice entails. But that's still a little different from what prosecutors have to do - prosecutors take very seriously that their job is not to put people away but to ensure justice is done. Obviously part of that is following the rules. But exercising discretion about what charges to bring makes the role of prosecutors different from both defense counsel and judges. (See: "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).) The prosecutors I know take that seriously. So that's where my emphasis on thinking about "serving justice" comes from.

(And the final caveat I meant to mention last time: not having occupied any of these roles yet, this is all as I understand it now, and certainly subject to change as I actually start to practice!)

Comments

[New Kid on the Hallway]

And a quote from another defense lawyer's blog (at http://notguiltynoway.com/2012/04/and-the-beat-goes-on.html):

"I was asked the other day what it is that I loved about this job. Why I was better suited to this than to being a prosecutor. I know we’ve gone over this a million times but the answer is always the same. I love the single mindedness of this job. There is no other purpose but my client. There is no seeking of justice or decision making that goes beyond what is best for Mr. X or Ms. Y. There is no close call on whether this will be good for society or even for my client’s family. There is no one in the world but him. I find it to be so freeing and simple. Not that the work is simple, but the concept of it. I do not have to play god. I get to just be me."