The Worst Of Us

Every criminal defense lawyer has gotten this question at some point in time: how can you do what you do?

How can a criminal defense lawyer represent someone they believe committed a crime? To answer that question I want to talk about two things that happened in the news recently. They may seem unrelated, but they are actually a great illustration of what I believe to be the answer.

Dzhokhar Tsarnaev and his lawyers:

Dzhokhar Tsarnaev was convicted of murder and other federal crimes as a result of the Boston Marathon bombing. No big surprise there, especially since his defense team essentially admitted his guilt at the beginning of the trial. This wasn’t because his lawyers were stupid; quite the opposite: his lawyers are considered to be some of the best criminal defense lawyers in the country. Their focus was not on claiming their client’s innocence, but on trying to persuade the jury to spare his life. We won’t know if the strategy will pay off until the jury returns a verdict on the sentence.

In this case there seemed to be no question about Tsarnaev’s guilt. He committed a heinous, awful crime. Yet these lawyers stood by his side and presented the best case for him they could. They presented evidence, cross-examined the government’s witnesses, and poked holes in the government’s case. Their strategy, in the broad strokes, was apparently to paint his brother as the mastermind behind the attack, and convince the jury that Dzhokhar was pressured into going along with the plan. Perhaps that will spare him from the death penalty. Perhaps not.

Michael Slager and his former lawyer:

David Aylor, the lawyer formerly representing Michael Slager, decided to noisily announce he would no longer represent him. If you’ve been hiding under a rock, Slager is the South Carolina cop who was caught on video shooting an unarmed black man in the back while he ran away following a traffic stop. Apparently Slager hired Aylor on Saturday to represent him after the shooting, but before the video came out. As soon as the video hit the media, however, Aylor kicked his client to the curb and gave an “exclusive interview” as to why he could no longer represent his client. While Aylor claimed that the attorney-client privilege prevented him from discussing the specifics of why he withdrew, he gave this statement which should remove any doubt about why he felt he could no longer represent his client:

All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately.

Translation: as soon as Aylor realized that his client was not a “good cop” and that he couldn’t be his white knight in protecting him from criminal charges, he bailed. Maybe other things influenced his decision. Maybe he was afraid representing a white cop charged with the murder of a black man would reflect poorly on his character. Maybe he was worried he would be the focus of Ferguson-style protests. Maybe he saw the video and the press coverage and thought this would be a great opportunity to get in front of the story and show everyone just how good a person and lawyer he is. Maybe his intentions, however misguided, were good. Maybe they weren’t. Whatever his reason, there is no justification for that quote, or for giving an exclusive interview to insinuate his client’s guilt.

Other lawyers have made much hay over his breaching of the attorney-client privilege in going to the press, so I’m not going to belabor that point. I want to talk about the bigger picture.

Asking the question a different way:

I offer these two contrasting examples to answer your question: how can a lawyer represent someone they believe to be guilty? How can a lawyer truly represent the worst of us?

Perhaps the answer lies in the your response to a different question: if you were accused of a crime which lawyer would you want – the ones who represented Tsarnaev, or David Aylor?

Aylor’s (and lawyers like him) representation is contingent on something they believe about their client being true. That something could be innocence, lovable-ness, or whatever. The David Aylors of the lawyer world will only represent clients they believe to be “worthy” of representation. The minute David Aylor thinks you’re guilty, he will bail. The minute David Aylor feels uncomfortable representing you, he will bail. The minute David Aylor thinks representing you will hurt his public image, he will bail.

In contrast, lawyers like those who represented Tsarnaev do not have this “client worthiness” requirement. They believe that every person, regardless of gender, ethnicity, creed, belief, disbelief, actual guilt, or innocence deserve zealous, competent, and effective representation. Their clients do not have to be worthy of representation, instead, the government and the prosecution must prove itself worthy of convicting them.

Who do you want as your lawyer?

The worst of us and the rest of us:

When the justice system in this country decides to prosecute  someone for a crime, the government is ruthlessly efficient. It’s no coincidence that the U.S. has the highest incarceration rate in the world. The government can bring unlimited resources and manpower to bear in investigating and prosecuting crimes. Harsh mandatory minimums and a massive list of incomprehensible criminal statutes let prosecutors bring inflated charges in order to force a plea.

This is how the system treats the worst offenders. This is also how the system treats the not-so-worst offenders, those who violated some obscure criminal statute like the migratory bird act, and those who have committed no crime but were simply in the wrong place at the wrong time.

99.999% of the time the government and its lawyers make no distinction of whether or not a defendant is “worthy” of being a defendant. Chances are the way the government treats the worst of us, the Tsarnaevs, the Mansons, the serial killers, rapists, arsonists, etc., is the same way it will treat you if you are ever accused of a crime.

This is why it is so important that criminal defense lawyers don’t do what Aylor did. Whatever his reason for dumping his client was, I sincerely hope he never takes on another criminal defense case again. Ever.

Anyone who congratulated Ayer on his decision or who thought “finally, a lawyer does the right thing” has a deep and fundamental misunderstanding of what a criminal defense lawyer’s job actually is. A criminal defense lawyer’s job is to be unpopular most of the time, to not be swayed by public opinion, and to stand between the government and their client in order to force the government to prove itself worthy of being able to convict them.

So who do you want as your lawyer?