Criminal Defense Lawyers Are Just Doing Their Jobs
And often, that job means making arguments to juries to excuse the acts of guilty people
Every time there is a high profile criminal case, the defense lawyers get criticized. Right now, that means that the lawyers representing Derek Chauvin, the officer who knelt on George Floyd’s neck for more than nine minutes, are getting roasted online and on television. Back in the day, it was Leslie Abramson (defending one of the Menendez brothers), Johnnie Cochran (defending OJ Simpson), and Harland Braun (defending the cops who beat Rodney King).
The criticism is usually the same. “Can you believe this awful, offensive argument that this person made to free his or her guilty client?” Somehow prosecutors seem to avoid this fate, even though they have bad habits such as putting innocent people in prison or on death row, or overcharging and oversentencing minor offenders. But the public seems to believe the opposite of the old saying- it’s better that hundreds of innocent people languish in prison than that one guilty person escape justice through the machinations of a clever lawyer.
And actually it is even worse than that. Chauvin hasn’t even been acquitted yet, and very well may be convicted! People are criticizing his defense lawyers for the audacity of… wait for it… arguing things in court!
Now to be clear, I get it. Nowadays, I hear that criminal law professors are somewhat reticent to have detailed discussions about rape law because there will be sexual assault survivors in the class who will be triggered, but back when I went to law school, it was extensively discussed. And various state laws contained a lot of provisions and doctrines that made it possible for very bad rapists to escape punishment. If you are the victim of a date rape and have to read several cases where a defendant got a conviction reversed because there was no testimony that the victim tried to fight off her attacker, I would imagine that could be a very traumatic, angering experience. And people feel the same way when they have personal experience with racist cops and then hear a lawyer in a court case tell the jury that the victim was not really killed by the cop who kneeled on his neck for nine minutes.
But what exactly do people want? Do you think our criminal justice system would be better if we substantially constrained the role of the defense lawyer? There are already limits on what a defense lawyer can argue (for instance, had Judge Ito been tougher and excluded Johnnie Cochran’s police conspiracy theories from the trial, a conviction of Simpson would have been affirmed by an appellate court, because Cochran did not have any actual evidence to argue a conspiracy from). But people are on the dock for years of prison, sometimes life in prison, and sometimes even the death penalty. Don’t we all agree that they are entitled to have someone stand up and force the state to prove every element of that case beyond a reasonable doubt before we convict them? And don’t we all believe in this even though every once in awhile, a jury will find that a guilty defendant wasn’t proven guilty beyond a reasonable doubt?
Specifically, causation is a major issue in many homicide cases. If you run over a pedestrian, you can be imprisoned for years for vehicular manslaughter. If you run over a corpse, you aren’t guilty of that crime. So if there’s any evidence to argue an alternate cause of death, a defendant has the right to argue that to the jury and see if they buy it. That’s how a criminal justice system is supposed to work.
And indeed, by allowing defense lawyers this wide latitude, we make policework and prosecutions more accurate and more respectful of people’s rights over time. For instance, the hated OJ Simpson defense team exposed huge weaknesses in the collection of forensic evidence by the LAPD. After the case, the Department instituted needed reforms. These reforms almost certainly prevented the prosecution and conviction of some number of innocent people; we just will never know who they are because the crime lab never inaccurately pointed to them as suspects.
Criminal defense lawyers who question the prosecution’s assumptions regarding a highly charged police abuse case serve the broader societal purpose of ensuring that people are imprisoned only when the state can prove their guilt beyond a reasonable doubt, and that the state uses fair and accurate procedures to bring its prosecutions. And they do this by sometimes making arguments that are distasteful, by playing on prejudices, and by trying to sow doubt when there is none. It can be ugly at times, but you wouldn’t want the system any other way.