Ratio Juris: Facets of Criminal Procedure in a Constitutional Democracy

Prominent criminal lawyer Edward Bennett Williams once noted that, like other criminal lawyers, he took on difficult case for unpopular clients, ‘not because of my own wishes, but because of the unwritten law that I might not refuse.’ — Abbe Smith and Monroe H. Freedman, in the preface to their edited volume, How Can You Represent Those People? (2013)

Defense attorneys are frequently asked the ‘cocktail party’ question: ‘how can you represent those people?’ Prosecutors are rarely asked, ‘how can you prosecute those people?’ It’s a good question—and maybe harder to answer, in many respects, than the defense attorney question. It is interesting that we do not demand the same moral accountability from prosecutors that we do from defense attorneys they have chosen. — Paul Butler in the Smith and Freedman edited volume (above)

In a free society, it is vital that there be a counter to the overwhelming power of government, because it is a power that can be easily abused by those who wield that power, individuals who may be more interested in advancing their own ambitions, venting their own hatreds, and satisfying their own prejudices, than they are in respecting our rights and even protecting society. In representing ‘those people,’ therefore, even those who have committed the worse crimes against other people and against society, the criminal defense lawyer serves each of us by curbing official abuse and preserving the fundamental values of a free society. Vital though criminal defense is, it can also be grueling. In addition to what is at stake in representing the accused—frequently the client’s inhumane imprisonment, and sometimes even the client’s [possible or imminent] death—criminal lawyers also have to deal with public scorn that can go beyond the familiar ‘cocktail party question.’ As Clarence Darrow noted, ‘You must learn to endure criticism and to be callous to spiteful remarks.’ — Monroe H. Freedman in the Smith and Freedman volume (above)
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§ 94. “The person charged is entitled to have the assistance of a defence counsel of his own choice at every stage of the case. He shall be so informed. The court may allow the person charged to have his defence conducted by more than one counsel.” — From Norway’s Criminal Procedure Act of 1981.

At The Faculty Lounge blog back in 2011, Bridget Crawford posted on the lawyer who agreed to represent Anders Behring Breivik, the Norwegian suspect who apparently had confessed to the bombing in downtown Oslo and the shooting spree that soon followed at the island summer camp, terrorist acts that claimed the lives of 76 individuals. Breivik was convicted of his crimes in July 2012. Crawford transcribed a portion of the interview with his defense counsel, Geir Lippestad, part of which follows:

“For several hours he hesitated and discussed with friends and family whether to defend a man who only hours early had massacred 68 young people on a summer holiday island. But in the end his civic instincts trumped his initial horror. ‘I believe that the legal system is very important in a democracy and someone has to do this job,’ he told reporters this afternoon.”

Some biographical background on Lippestad, whose own political views were worlds away from those of his client (distinct from but perhaps not unrelated to his violent, reactionary right-wing views, Breivik was several times diagnosed with a variety of mental health disorders, the severity of which raised the possibility of his being confined to a psychiatric hospital, upon which he said: ‘I must admit this is the worst thing that could have happened to me as it is the ultimate humiliation. To send a political activist to a mental hospital is more sadistic and evil than to kill him! It is a fate worse than death.’):

“Geir Lippestad (b. 7 June 1964) is a Norwegian lawyer, politician and social activist. He is most known for his involvement in several high-profile legal cases. As a criminal appellate lawyer, he first became known in 2001 when he acted as defense counsel following the murder of Benjamin Hermansen. [He was accorded international recognition as a result of being] “lead counsel for the perpetrator of the 2011 Norway attacks, Anders Behring Breivik. [….] He is also noted for being an outspoken proponent of progressive causes, and is the chairman of the left-wing think tank Agenda. [In 2015 he became and remains] a member of the Oslo City Council, representing Labour.”

What immediately follows is my original comment, now lightly edited, to Professor Crawford’s post:

Indeed, and let’s hope people do not draw any inferences about Lippestad based on the charges against his client (as has happened in the case of lawyers who did pro bono work for accused terrorists detained at Guantanamo). Contrary to what some prominent legal ethicists believe, I don’t think lawyers should be praised or blamed for exercising their professional and personal discretion with regard to whom they decide to represent, given the fact that every defendant is entitled to legal representation, no matter how horrific the charges (consider, for example, the charges against the defendants in the Nuremburg Military Tribunals), or how convinced we may be of the defendant’s guilt (based on well-attested facts in the public domain), despite the putative and muddled notions of (material and probatory) presumption of innocence.
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As Brad Wendel has argued, “the lawyer should be seen as endorsing more general political values embodied in the legal system,” and Geir Lippestad’s rationale for agreeing to represent Breivik is evidence of his more-than-verbal appreciation of the value of that endorsement (Crawford views this decision in term of ‘moral mettle’), although I would add the decision likewise represents core moral values and principles enshrined in the rule of law generally and criminal law in particular, be it municipal or international. All defendants are entitled to due process and unqualifiedly deserve to be treated with dignity. As Joseph Raz explains in Ethics in the Public Domain (1994), “When people are called upon to make substantial sacrifices in the name of one of the fundamental civil, [and here legal] and political rights of an individual, this is not because in some matters the interest of the individual or the respect due to the individual prevails over the interest of the collectivity or the majority. It is because by protecting the right of that individual one protects the common good and is thus serving the interest of the majority.” The “common good” in this instance includes the rules of criminal procedure in the legal system of a constitutional democracy[1] which, by definition, is committed to democratic law-making (be it constitutional, statutory, common, administrative or regulatory) and the “rule of law” generally.

The “legal and moral ecology” of criminal defense lawyering, the norms and duties of which appear to be successfully internalized by most of its practitioners, bring in their wake (as spill-over or by-product effects) enhanced personal and professional esteem, respect, or status among one’s peers as well as among those (as part of an overlapping set) outside the profession likewise concerned with rule of law values and constitutional and democratic principles and practices. There is of course a litany of publicly avowed reasons[2] that will be proffered by way of defense of such representation having to do with rule of law values generally (both substantive and procedural), constitutional protections and rights, and related democratic values and principles in particular. Criminal defense lawyers who defend presumptively or allegedly “guilty clients,” notorious or not, could be said to be clear exemplars of the moral and legal norms and professional responsibilities of criminal defense lawyering, evidencing and modeling the moral, legal, and logical breadth and depth its members commit to in virtue of their professional role and duties of legal office. The necessary exercise of personal moral discretion and judgment invariably means that some (in this case fairly small class of) individuals may studiously avoid recognizing (at least the full extent of) their professional and moral legal obligations, perhaps finding sufficient rationalization or justification in their ethical lifeworld that ill fits the predominant moral and legal ecology of criminal defense lawyering. On the other hand, personal moral discretion is essential to lawyers making a voluntary decision to represent a client or cause. The late and great Monroe Freedman speaks to the professional commitment made in favor of such representation:

“After having made the choice to serve as the client’s fiduciary, however, the lawyer is bound to zealously represent the client’s interests as determined by the client after appropriate counseling by the lawyer. At that point, for a lawyer to act in a way that betrays the client’s interests would be both a breach of fiduciary duty and a violation of personal moral obligations that many lawyers share.”

The real problems of criminal defense, in the U.S. at least, lie elsewhere: recalcitrant issues with access to justice, the unfulfilled promises of Gideon, innocent clients pleading guilty, the ethics of plea bargaining, systemic race and class biases, and prosecutorial misconduct, for example. As Wendel succinctly reminds, “In general … there does not appear to be a pervasive problem of potential clients being turned away on account of their morally disagreeable qualities, as opposed to their inability to pay.”

[1] Strictly speaking, Norway is a constitutional monarchy with a parliamentary system of government, while its constitution is correctly characterized as “democratic,” hence the title of this Note.
[2] Wendel provides one such list in his book, Lawyers and Fidelity to Law (Princeton University Press, 2010): 151.
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Prior blog posts by yours truly with direct or indirect relevance to both criminal procedure and the right to counsel:

See too:

Andrew Cohen, “So You Want to Learn More About the Gideon Case,” The Atlantic, March 13, 2013.
“Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” Report of the National Right to Counsel Committee, April 2009 (The Constitution Project).
Keith Findley, “The presumption of innocence exists in theory, not reality,” The Washington Post, January 19, 2016.
Monroe Freedman’s provocative article, “An Ethical Manifesto for Public Defenders,” Valparaiso University Law Review, Vol. 39, No. 4 (Summer 2005): 911-923.

For a philosophically and legally sophisticated analysis of the criminal law’s notion of “presumption of innocence,” please see chapter 4, “Innocence, the Burden of Proof, and the Puzzle of Affirmative Defenses,” in Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006): 89-114.

Relevant Bibliographies: