I came home the other day once again feeling dejected because a court ruled against me. In his infinite wisdom, my son asked me, “Well dad, why do criminal defense if courts always seem to rule against you?” In an instant millions of electrical impulses surged in my brain. Part of me wanted to go into a long explanation about doing criminal defense because I understand that while you may be able to guarantee that you won’t commit a crime, you can’t guarantee that you won’t be charged with a crime. That too many people fail to acknowledge, perhaps don’t want to believe, that judges are human, police officers may lie, and innocent people are sometimes charged with crimes.
One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.
Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.
But than I remembered Gregory Peck as Atticus Finch in To Kill A Mockingbird. The porch scene when Scout asks Atticus why he is defending a black man Tom Robinson. Atticus ponders the question, and says, “For a number of reasons. The main one is that if I didn’t, I couldn’t hold my head up in town. I couldn’t even tell you or Jem not to do something again. (He puts his arm around her.) You’re gonna hear some ugly talk about this in school. But I want you to promise me one thing…that you won’t get into fights over it, no matter what they say to you.”
Atticus doesn’t turn philosophical, and begin some soliloquy about how all men are created equal. Atticus doesn’t turn moral judge, and discuss how pathetic is the ignorance of racism. He doesn’t turn bleeding heart social worker. He doesn’t self-congratulate regarding his superior enlightenment. He doesn’t see himself as in possession of a better spirituality or religion.
He is simply a prisoner to the voice of his own integrity. And in that sense, you could even say he is self-serving. He wants to be able to hold his head up in town. He wants to retain his moral authority to be a father and good disciplinarian. He is willing to risk his own social reputation to be able to say he was true to himself. What he doesn’t know, of course, is that his commitment to his integrity will ultimately cost him more than public reputation. The lives of Atticus’ children will ultimately be threatened, too.
In that instant I knew how to answer my son. I simply told him I DO IT TO RESPECT MYSELF AND TO PROTECT YOUR RIGHTS.