Hiring a Lawyer Isn't Engaging in "Violence"
The right to retained counsel is a necessary protection for fair trials
During the oral argument of the famous Miranda v. Arizona case, Chief Justice Earl Warren was flabbergasted that the attorney for the State of Arizona was arguing that the suspect having a lawyer would obstruct the police’s ability to investigate a case. “Are lawyers a menace?”, Chief Justice Warren asked the advocate, in an astonished tone.
Defense lawyers, of course, are not a menace. They are what ensures fair trials, that innocent people don’t get convicted, and that guilty people don’t get over-punished. They do this through investigation, cultivation of witnesses, careful examination of the evidence, identification of weaknesses in the state’s case, and, sometimes, by advising the client that he or she needs to plead guilty and cut a deal.
People who favor prosecutions see things differently. States tried for decades to prevent indigent persons from obtaining lawyers (eventually resolved by Gideon v. Wainwright) and keep lawyers out of the police interrogation room (eventually resolved by Miranda). In the South, they also made great efforts to obstruct people involved in the civil rights struggle from obtaining lawyers. They held people incommunicado, refused to recognize retained lawyers from out of state, and otherwise attempted to hinder the lawyer-client relationship.
In the aftermath of 9/11, a lot of conservatives became obsessed with denying lawyers to terrorists. “Lawfare”, they called it, as if asserting a person’s rights was the same as a terrorist attack. Hold that thought- it has returned in a big way. The prison camp at Guantanamo is in many ways an artifact of the school of thought that concepts like due process and fair trials and the right to counsel are “too good for the terrorists”.
This, of course, makes zero sense. Guilty people hire good lawyers and get found guilty anyway, all the time. The reason for due process and fair trials is because innocent people get caught up in the court system, or sometimes guilty people get over-punished. When you deny people lawyers, you aren’t punishing them; you are simply making it easier to do injustice.
This week, a USA Today story detailed efforts to attempt to prevent the Capitol rioters of January 6 from fundraising to retain lawyers. Payment processors are trying to stop the payments on the theory that they are a form of “violent advocacy”. This is, at best, misguided, and at worst, reflective of the same authoritarian mindset that led the lawyer for the State of Arizona to imply that lawyers were a menace.
The issue has been clouded somewhat by Glenn Greenwald, playing his usual poisonous role in the discourse by attacking the young USA Today reporter who got the story. This is blaming the messenger. It is a perfectly legitimate news story and all she was doing was her job.
But on the merits, raising money to pay lawyers is not advocacy of violence. It’s acting to protect valuable constitutional rights. Left wingers get charged with violent acts too- back in the 1960’s, this was very common, and police and prosecutors would have loved to be able to interfere with fundraising to retain lawyers for these defendants. Even just last year, the Black Lives Matter protests involved some violence and property damage. Yet I doubt anyone now advocating against these legal defense funds for January 6 rioters contends that it would be perfectly fine if payment processors tried to interfere with fundraising for lawyers and bail funds for BLM protesters accused of violence.
The fall-back argument people make on this is that these defendants are entitled to a public defender, nothing more. This is a really bad, dangerous notion. Public defenders are wonderful. We need to provide more funding to them. But they are also overworked, under tight budgets, and face a fundamental conflict that is not their fault but is no less real- the same state that funds them is the entity that is trying to put their clients away. Some segment of liberals seem to think that what we really need to do is take away the right to retained counsel rich defendants have and put everyone in the public defender system. But that would in fact be awful, because it would make it really easy for the state to starve public defenders of funds. It isn’t a wonderful thing that rich people can often hire the best lawyers, but the right to retained counsel is an absolutely critical constitutional right: paid lawyers are the only assurance that a defendant can get a full defense, with full investigative resources and the full capacity to force the state to prove its case against him or her.
And bear in mind, these attacks on funding of lawyers do not, actually, hit rich people. The scion of the Brent Bozell clan was among the January 6 rioters. I would assume he has access to the best possible legal representation. The people who will actually be denied retained lawyers if they cannot crowdfund for them are going to be poor and middle class people. Far from putting everyone on the same footing, the “let them have public defenders” argument actually widens the gap between the rich and everyone else.
The fact of the matter is that the way you punish January 6 rioters is by charging them with crimes and convicting them before juries, or obtaining tough plea deals. You don’t punish people by trying to take away their lawyers- all you do is increase the likelihood of a miscarriage of justice.