Tell me about Lawyers' thoughts on defending clients that they know are guilty

Question

There are other questions that address the role that lawyers play in defending clients and the difference between knowledge and proof. I am instead asking about the human element and the impact on lawyers themselves when defending people that are quite guilty (in the layperson's sense, at lease).

This question came to mind when reading a recent article on the El Chapo case as one of his lawyers describes him as a very nice guy. We could also hold the same discussion about the counsel for the Aurora or El Paso shooters.

I would like to know what kind of emotional, professional, or even philosophical challenges that lawyers for these people face. I understand that there will be defenses constructed that may call into question mental states, arrest and evidence procedures, or even conspiracy theories. I am not interested in the legal aspect of these cases.

I am curious as to whether some of these lawyers are ever troubled by their part in providing legal defense (whether or not they were successful). Have there been any autobiographies or firsthand accounts of these struggles? I would be interested in understanding the human drama that exists between performing one's job, upholding one's professional values, and navigating the atrocities that humans are capable of.

Answer 1

You should read "Stories of the Law and How It Is Broken". It includes a chapter on exactly this issue.

Briefly, the author was the junior "pupil" (i.e. newly qualified and learning the ropes of real practice) of a senior barrister who was defending a man accused by his daughters (now adults) of having repeatedly raped them when they were children. The man never admitted his guilt to the barristers, which meant that they could sit in court and watch him testify to his innocence. However his general attitude to the accusations led them to privately conclude that he was probably guilty. Despite this they defended him to the best of their ability, primarily by picking holes in his daughters' testimonies, and he was found not guilty.

Its easy to ask how this is ethical. However the job of deciding guilt or innocence belongs to the jury. It does not belong to the defence lawyer, and there are good reasons for this. Imagine a world in which the defence lawyers were required to take a view on the guilt of their clients, and then not provide an effective defence if they believed in their guilt. For example, suppose that they see a client deny guilt on oath and suspect, but not know, that the client is lying. If they are required to stand up and say "Excuse me m'lord but I believe my client is probably lying" then they have torpedoed their client's case. So when an accused first talks to their lawyer they would have to, without any advice or help, defend themselves to their lawyer. If the accused failed to persuade the lawyer then they would be denied an effective defence, even though they might actually be innocent.

Another way to look at it: when you are accused of a crime the entire uncaring machinery of the State is ranged against you, publicly funded and quite capable of entirely destroying your life. They know the rules, how to play the game. It seems only fair that in all of this there should be someone on your side.

Answer 2

It's a trivial answer, but if a lawyer knows for certain that their client is guilty, the best defence would be to advise the client to plead guilty.

With a guilty plea, the sentencing would be related to mitigating factors. It would be the lawyer's responsibility to effectively present any such factors to the court.

Books and films frequently present defence barristers and solicitors as trying to "get their client off" a charge, but that's because stories like that make for engaging books and films. A lawyer who advised their guilty client to plead guilty would be doing nothing unusual and would be pursuing the best legal course, but the case would have as much drama as a story about an engineer whose bridge didn't collapse.

Answer 3

Have there been any autobiographies or firsthand accounts of these struggles?

The comment posted by "John Doe, Esq." (timestamp being May 22, 2014 at 3:56 pm) in this article will be of your interest. The reasons for his anonymity are obvious, but this is one of the rarest samples of sincerity an outsider will ever obtain from an attorney, let alone one who currently profits from the legal system.

Every time a lawyer makes frivolous allegations like in the El Chapo example you mentioned, that lawyer is proving to the world that he has lost morals altogether. That blatancy is an impermissible deviation from the lawyer's job of procuring that due process is afforded to his criminal clients. In those instances, one cannot expect there to be room in the lawyer's mind for remorse or to even entertain a moral dilemma.

Without ever condoning the despicable acts that many practitioners incur, I can understand how the credentialing process (at least in the US) is one early factor toward severing their integrity. There are other factors such as the glamour and fiction built around the concept of "lawyer", but long-term these exert lesser psychological pressure on what a lawyer does with his life & career.

J.D. programs are overpriced and make US lawyers start their career with more indebtedness than most other graduates. Of course, a prerequisite for starting their career is that the J.D. graduate passes the Bar exam, an exam which many J.D. graduates fail. For a small fraction of the cost of a J.D. degree you can earn a graduate degree that is far more edifying than the job of obfuscating the jury for the benefit of wrongdoers.

Having spent 2-3 years and a fortune on a J.D. degree (in addition to the undergraduate degree) and passed the Bar exam, the lawyer feels so invested in the hole that usually he senses no option but to lend himself to the dynamics of litigation business. Keep in mind that the skills & body of knowledge imparted in a J.D. program are hardly transferable to other fields. This is different than, for instance, the physicist or the electric engineer who can easily transition to mechanical/industrial/computer engineering (by the way, it is easier for an engineer to internalize matters of law than for a lawyer to attain an equivalent proficiency in physics & engineering). From that standpoint the lawyer is trapped, but --for whatever reason-- he does not want to switch careers.

From then on, the average legal practitioner embraces a downward spiral for the sake of money & influence. In the case of small-town lawyers, this stays at the level of mere survival. But other lawyers do succeed in rubbing elbows with the elite (again, lending themselves to unconscionable acts) till things blow up. One recent, prominent example of that "success" is lawyer Michael Cohen.