Posted on December 20, 2007 in Uncategorized

Gideon wrote:

Maybe I'm naive, but I thought it – what we do, this side and the other – was about justice. Righting wrongs. Then why, for some, is it about winning and losing?

What this side does is different than what the other side does. The other side has (but of course doesn't always follow) an ethical and legal mandate to seek justice. We have an ethical and constitutional mandate to zealously defend our clients.

The nature of justice is something that I spend a lot of time meditating. There are different sorts of justice. For example, there is restorative justice (making things right) and retributive justice (evening the score). Cleaving justice on another plane, there is substantive justice (making things right or evening the score) and procedural justice (regardless of the result, making sure that fair rules are followed).

If you accept that procedural justice is justice, then yes, criminal defense is often about justice. Part of our job is to seek procedural justice by making sure that fair rules are followed. When I say "fair rules" I mean rules fair to our clients. The other side, being the government, is not constitutionally entitled to fairness. Nor is the other side, being a non-living creature, ethically or morally entitled to fairness. So we seek procedural justice and, if we get it, our clients get all possible breaks.

Now, Young Shawn Matlock asks this question: "How many criminal defendants who hire a defense attorney will be happy being led into custody following a loss at trial knowing that justice was done?" and answers it: "None. That's how many." I disagree with Shawn's answer. I have had many clients unhappy with me for having helped them execute their decision to plead guilty, and many clients whose cases have been dismissed as a result of my hard work have acted as though the dismissals were nothing more than their due, but almost every client whose case I have tried has been happy with my representation. Lots of defendants have never had anybody fight for them before; procedural justice feels good to them.

But most (non-defending) people don't accept procedural justice as justice. In the criminal courthouse, it appears to most that the only justice is retribution. When rules fair to the accused are followed and the accused goes free, they call it a "technicality."

In a criminal case, the government is trying to put the accused in a box, whether real (coffin, prison cell) or metaphorical (probation, sex offender registration). The criminal-defense lawyer is trying to prevent the government from putting the accused in a box. Sometimes nothing (not even a motion to change the facts) will keep the client out of a box. On those occasions the defender tries to make the box as big as possible (a prison cell instead of a coffin, probation instead of a prison cell, shorter probation instead of longer).

The people trying to put our clients into boxes think they know what substantive justice is. In fact, many of them work for a government agency known (in Newspeak) as the Department of Justice. The Department's official policy (holy writ to official woman) is to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case." So federal prosecutors must, according to law, seek justice, but must, according to policy, seek "the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence." In DOJ-world, substantive justice is what Congress and the Guidelines Commission say it is.

(A slight digression: the "charge the most serious offense" policy was a contribution to the American criminal "justice" system by proud evangelical Christian John Ashcroft; if Jesus had followed this policy, though, he would most assuredly have cast the first stone.)

Many of us who are forced by the lack of official policies to think for ourselves recognize that nobody - including those charged with seeking justice - has the slightest idea what constitutes substantive justice. We don't know what substantive justice is: we don't know what size boxes our clients deserve or, often, whether they deserve boxes at all. Not being omniscient, we can't know what substantive justice is. It's not our job to try to figure out what substantive justice would be, and it's damn sure not our job to seek it.

What about "winning"? Norm Pattis rejects the concept in favor of advancing his clients' interest (a definitional quibble, in my view; Norm views the term "winning" as part of the sports metaphor of trial that he rejects, but the concept of "winning" isn't really "drawn from sports"); Malum ignores it in favor of filling in the blanks in the government's poorly-written story (a nice way of putting it); Scott and Stephen accept it implicitly (Scott writes that "winning often has little to do with justice" and Stephen discusses "the winning argument"); and Matlock adopts it wholeheartedly.

"Winning" is a vague term. An ethical prosecutor might consider an acquittal a win, and a defense lawyer might consider a conviction a win. By "winning" I doubt that Scott or Stephen or Matlock means anything other than "getting the best possible result for the client." I'm okay with defense lawyers seeking to "win" as long as winning and losing refer only to the client's interests, and not to the lawyer's ego. Sometimes, though, the goal is not to win because winning is impossible. Sometimes the result of a trial is a foregone conclusion (though we usually, in the grips of trial psychosis, convince ourselves otherwise). Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea.

If we have no hope of winning, why do we try those cases? I have an idea about that; more tomorrow.

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