If You See the High Ground, Take It

Prosecutor Ken Lammers has advice for young criminal lawyers:

I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are “the good guys”, start on the other. Practice there not for 6 months – or even 2 years; practice there for at least five years – enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.

I don’t think it’s bad advice for everybody (lots of people might have no clear idea of how the system works, and might be leaning only gently toward one side), but for anyone who has a clear preference for one side or the other, it goes against several of my principles.

First, do the right thing right now. If you think the defense are the good guys, join the defense. If you think the government are the good guys, join the government. There’s no telling whether you’ll be alive even a year from now; wouldn’t it be a shame to spend the last year of your life working against the good guys?

Second, what is in your heart is more important than what is in your brain. If you are leaning more than gently toward one side or the other of the criminal justice system, trust that feeling. You’re supposed to be doing what you believe in doing. If you cynically work to keep people out of prison when your heart is for making society safer (or you cynically work to put people in prison when your heart is for making them free), you’re doing a disservice to your own principles. You also may be depriving someone else of the opportunity to follow her own heart. As ex-cop ex-navy future lawyer Edintally comments on his blog, “The State can pick from an unending supply of youngsters who believe in the State mission.”

Third, your duty to do right is a duty to your self. This does not translate to a duty to the system. If you need to justify not defrauding the court by calling it a duty to the court, then your moral compass needs calibrating. We must (for our own sakes) act ethically and morally; and we must do what we can to help our clients. Sometimes those duties clash (would you murder a witness to free a client, if you could do so without fear of retribution?); how we resolve those clashes is who we are.

To the degree that we think the system works to deliver justice (that is, to appropriately punish the culpable while not punishing the innocent), we should support that system. But the truth is that the system is severely broken, and we have no duty to perpetuate it or to refrain from pointing out that the emperor’s backside is showing.

Ken writes,

Personally, my hope is that working both sides will lead a person to
have more loyalty to the system than a side. That’s not to say I don’t
expect people to play their part in the system to the fullest extent of
their ability. The system doesn’t work if they don’t.

It might be better than all the others, but the system doesn’t work, period. Even with zealous advocates on both sides, innocent people — that is, factually-innocent people — get convicted of crimes and sent to prison. No system that sends a single innocent person to prison deserves our loyalty. No system that sends a guilty person to prison for a day longer than necessary deserves our loyalty.

Let the prosecutors, cops, and judges try to maintain this broken system. Your duty to do right trumps your duty toward the system. We criminal-defense lawyers, at least, should be looking for ways to change it for the better or, failing that, to burn it down and start afresh.

Finally, never lose altitude unnecessarily. This is a trekkers’ aphorism. When you come to a fork in the trail, one side of which appears to go uphill and the other side of which appears to go down, the uphill trail is almost invariably the correct one; take the downhill trail, and you’ll wind up using lots of energy to make up the lost altitude.

The criminal justice system is an arena for civilization’s defining struggle. It’s not the struggle between prosecutors and defense lawyers or between rich and poor or between black and white, victims and criminals or predators and prey. It’s the struggle between freedom and safety.

Since humans first got together in communities, they have been giving up a freedom for safety; that’s the exchange implicit in the social compact. There is a continuum between those who feel that we should be safer (and necessarily, though they might not realize it, less free) and those who feel that we should be freer (and necessarily, though they might not realize it, less safe); somewhere in the middle are those who think society has struck the proper balance between liberty and security. There are few anarchists because trading some liberty for safety is not inherently evil; even Benjamin Franklin left open the possibility that an exchange of unessential freedom for permanent safety might make sense.

If you’re going to participate in civilization’s defining struggle, it’s best to know where you are on that continuum before you start to fight to shift the balance one way (toward safety, if you’re a prosecutor) or the other (toward freedom, if you’re a defense lawyer). If you know where you are and you follow Ken’s advice and start out working against the side that you think is right, you’re going to be trying to make up for that lost altitude later.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in become a better lawyer, criminal defense lawyers, ethics and/or professionalism, philosophy. Bookmark the permalink.

9 Responses to If You See the High Ground, Take It

  1. John Kindley says:

    I haven been extremely fortunate, in that in my limited experience as a criminal defense attorney I have not had the misfortune to represent anyone that I thought was a true scum bag. In talking to other criminal defense attorneys, particularly public defenders in my office building, I appreciate what a lucky fortune this has been. There are dirt bags out there that I think I would feel good about prosecuting and subjecting, as they have subjected their victims, to arbitrary and capricious power. But a prosecutor’s job entails enforcing laws that are immoral. I couldn’t do it, and couldn’t recommend it to anybody.

    • Mark Bennett says:

      John, I would say that dirtbags are in the eye of the beholder, and often a reflection of the beholder. I have represented some really bad dudes, and had no trouble finding (and honoring) the humanity in them. The lawyers I know who have the least respect for their clients are the ones whom I wouldn’t allow to represent a loved one at any cost.

  2. R Guest says:

    The problem that I’ve seen, both in the military and in a prosecutor’s office, is that positions of relative power attract those who want to wield it. The idea of Cincinatus and the plow seems foreign to many prosecutors, who ply their power almost breathlessly, rather than with humility and reluctance.

  3. Interested Counsel says:

    Well… Congratulations guys on showing the world how a transition of power should look. Hefty price tag. But certainly impressive and, seemingly, cordial.

    But Mark, looks like the big man in America reads your blog. And he answers, don’t give into the lie of security versus freedom. Could have been posting here!

    John, you have not been fortunate at all. The real test of defence counsel, and the true example of really being defence counsel is to represent the true dirt bag. That is your opportunity to put your money where your mouth is. That you are not someone who simply academically answers the “how can you defend” question; that you live it.

    Anyone can defend someone who does not need defending.

    I cannot speak about this theme in most of the American blawgs I have read about being unable to prosecute – unjust laws – the corruption of power etc. Our system is entirely different and I prosecute as much as I defend.

    But by way of specific defence example; I hate the child pornographers I have defended, and the things I have had to witness because of them. But I will, and do, continue to defend them as much as my skill enables me to do – the cab-rank rule over here means I don’t have a choice – but even if I did, I would hope that my belief in my role would be sufficient for me to continue.

    I have put it differently here http://www.greaterhoustondefense.com/2008/12/articles/criminal-defense-help/how-can-you-defend-those-peoplecriminals/#comments
    but can I say how depressing it appears (and I stress appears) from over here how you guys view your role, and the role of your prosecutors.

    From across the pond

  4. Interested Counsel says:

    And thanks Mr Guest, never heard of Cincinnatus before, interesting.

  5. Edintally says:

    As usual Mark, you’ve said it better than I.

  6. Mary says:

    The system is broken, and we have to keep pointing it out. But we can still have loyalty to the way it is supposed to work, is meant to work. And then try to get it right whenever we can.

    This has nothing to do with sides. Both sides get distracted or tempted by baser goals–like high conviction rates, career building, maybe even political ambitions.

    Is there a better way to learn criminal defense than to start as a prosecutor?

    • Clay S. Conrad says:

      Of course. By working under a good criminal defense lawyer.

    • Edintally says:

      I think that in an effort to be overly PC, we attribute one set of values to both sides so as not to ruffle any feathers. We need to end that practice. Let’s assume for a minute that all prosecutors are altruistic, that they want nothing more than to convict the guilty and free the innocent. Everyone can agree that those are worthy goals. But unless I’m missing something, conviction rates, career building, and political ambition fall under the scope of prosecution. You could substitute acquittals with convictions but I doubt they are viewed in the same way by the different offices. I also can’t recall anyone running a campaign with a platform of “vote for me, I’ve kept citizens out of jail”. The public, by and large, does not have much regard for criminal defense attorneys.

      The two positions are not different sides of the same coin. More likely, they are different sides to two separate coins. (PC: they are both shiny coins)

      (Prosecutors can be victims of the system as well. I’m sure someone here is privy to the burn out rate, that’s probably a whole ‘nother thread.)

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