From a civilian’s comment on this post about “John R.,” the anonymous Rochester, New York personal injury lawyer who dabbles in criminal defense and scoffs at the Bill of Rights:
I understand John R.’s position as it relates to United States of America jurisprudence. The legal system is heavily stacked in favor of the government especially when it deals with those citizens that have less than adequate means to support a good defense. . . . The court system is abrasive, callous and unsympathetic to those persons that find themselves caught in its web.
O, if only a person caught in the web of the criminal justice system could have someone on his side—someone who would stand ready to dedicate her wisdom, her intelligence, and her energy to trying to protect the accused from the system—a counterweight against the power of Government! This person’s job would not be to protect her own ego by “winning,” but only to defend with zeal the person accused of a crime, regardless of the outcome. Doing so might require her to acknowledge that it was at least possible to win; a defeatist attitude would be a self-fulfilling prophecy.
The fewer such devoted advocates there are, the more the system will be stacked against the accused. For the easier it is for the Government to put someone else in a box, the more energy they can dedicate to doing the same to you.
I think Jack White said it right:
You can’t take an effect, and make it a cause. A brutal and difficult system doesn’t cause lawyers who have given up the fight.
But wait. Isn’t the lawyer’s duty to this client, so that the duty to make the rest of us more free is subordinate? If the two duties conflict, then absolutely. But they don’t; the “everybody gets convicted anyway” (EGCA) attitude creates a false conflict between the good of the client and the good of society.
If it were true that everybody got convicted, then it would always be in the client’s interest to minimize punishment however possible, including capitulation, regardless of the incremental harm that capitulation did society. But everybody doesn’t get convicted, so the very real chance of an acquittal at trial has to be considered. Often it’s in both society’s interest and the accused’s interest for the accused to force the government to prove its case, even when the chance of an acquittal is small.
We are advocates; we can, if we wish, convince most clients to do whatever it is that we think is best for them. The EGCA lawyers use an untruth to convince their clients to plead guilty. They are silent here, but I imagine them in their little cliques filled with stammering indignation at the idea that anyone would tell their clients that a federal indictment does not lead inexorably to a conviction. After all, a lawyer shouldn’t give advice to an accused unless she’s going to be the one implementing that advice. But “not everybody gets convicted” is not advice. It’s a description of the way the system works.
It’s also an attitude that, like its reverse, is self-fulfilling.