A(n Ex-)Prosecutor’s Principles

Quoth Vincent Bugliosi, in a comment posted by John Kindley:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

That would be idealism. I, too, would represent a defendant — even one guilty of murder — if I were the only lawyer available, because the right to counsel is a sacred right in our society and much more important than any personal predilection I might have. But this type of situation simply does not exist in a city like Los Angeles, where 35,000 lawyers stumble over each other’s feet for cases. So I am free to follow my inclination.

Bugliosi’s philosophy is part ethical retardation and part not-spending-enough-time-in-the-company-of-good-criminal-defense-lawyers.
First, to the ethics of it. Summing up Bugliosi’s idea of a principled position: “if someone will be directly and obviously harmed by my failure to act, I will act; otherwise I am free to follow my inclination.” In other words, an it harm none do as ye will, with no thought given to how the conduct ramifies.

I peg Bugliosi, generously, at Stage Four of Kohlberg’s stages of ethical reasoning, which is perfectly adequate for getting by in society, but which leaves something to be desired for a criminal-defense lawyer (or, for that matter, a prosecutor). A more developed ethical mind would consider what the effect would be if everyone followed the same inclination.

It’s embarrassing enough that Bugliosi is so eager to share his own ethics, but he is also keen on interpreting the ethics of others. The problem is that when someone at one stage tries to understand the motivations of someone at a higher stage, it’s like a Flatlander trying to describe a sphere.

Now to second part. Conscientious criminal-defense lawyers abhor the courts’ low standards for “effective” representation of counsel. The representation that passes constitutional muster does not satisfy the high end of the bar. For them, saying “if I don’t take this case, it’s okay because someone else will” is not good enough; people get screwed when they have inadequate representation just as badly as (or worse than) they would with no representation.

We criminal-defense lawyers need to feed our families, it’s true, but that need does not inform our every decision (if it did, we would be vocal advocates of the war on drugs). Many of us are at leisure not to take every case that comes in the door. Yet the vast majority of us cheerfully (and sometimes pro bono) represent people who haven’t convinced us of their innocence. (Why? Do we need to have this discussion again?) Public defenders offices are filled with lawyers who daily choose to represent the damned rather than make more money. Bugliosi’s claim that their motivation in doing so is ambition is nonsense. If he spent more time in the company of criminal-defense lawyers (other than across the courtroom from them), he might better understand their motivation.

Bugliosi is free to follow his inclination, sure. So are you. But don’t pretend that you’re an idealist just because you would, in some fictive world, step up to represent a guy whom nobody else will represent. That sounds good in theory, but you’ll never get to, because the criminal-defense lawyers will get there first. And don’t pretend to know what the hell you’re talking about when you’re talking about other people’s ideals.

(Here’s more of Bugliosi’s philosophy, quoted by Kindley at People v. State:

I simply have no motivation whatsoever to knock myself out working a hundred hours a week, as I frequently do, trying to figure out a way to get some murderer off. . . .

In a nutshell, although I’ve never been a law-and-order fanatic, I do believe that those who have committed serious crimes should be severely punished, and I do not want to be in a position of actively seeking to thwart this natural justice.

Hey, who wants to thwart natural justice, right?

I suspect that this is part of Bugliosi’s problem conceptualizing the principle involved: he sees the criminal justice system as an instrument of “natural justice”—another Stage-Four position, by the way.)

38 Comments

  1. My community college criminal law and evidence instructor loved VB – I read Helter Skelter on his recommendation and found it a hoot and rather informative (I’m just a defense investigator so it was nice to see how a lawyer puts together a case and how ineffective LE can be in gathering evidence at a very early point in my career). A few years later I picked up his book And the Sea Will Tell – written from his work in defending a client. In that book he made it clear he only defends people who are innocent, in his estimation. I couldn’t help think of him as a dilettante when I read that (don’t get me wrong – he’s clearly a very sharp guy). The lawyers I work with are mostly conflict-panel attorneys who take what is given to them and we relish holding the government to task, no matter the crime committed. It seemed unseemly for an attorney to essentially be taking on the role of trier-of-fact. How can anyone know when taking a case that that person is innocent? I do not understand the notion that doing one’s job properly is somehow idealistic (You’re a defense lawyer? Then defend. Otherwise you’re just dabbling.). This is simply the work.

    1. I kind of thought of him as a dilettante when I read that too. But another way of looking at it is that by talent, courage, hard work, and maybe a little luck (i.e. getting to prosecute the Manson case) he was able to become sui generis, his own man, not needing to conform himself to what all the “real criminal defense lawyers” thought.

      1. Contempt for only some of those who’ve come before us! Besides, I’m happy to give VB the respect he’s due (and not an iota more) – I love his bit in the same book that skewers judges in general as being essentially political beasts (recall my relative youth and naivete, if you please). What I find more interesting in all of this is where he and other prosecutors are on the ethical scale. The injunction “to do justice” seems, at minimum, stage five or six – though I’m well aware most prosecutors, even the good ones, fall well short of this (War on Drugs, anyone?). But this gets into another thread altogether…though that edict is as idealistic as any a CDL would hold.

  2. I’m sorry, but that’s just ridiculous. Mark, I know you know about a friend of mine who questions what I do – is it worth putting what I believe above everything else, including defending people who do terrible things. Why has this never crossed my mind? Why did I just accept that I defend people against the government and that’s that. Where did all this crazy hand wringing over defending guilty people come from?

    1. My posting these excerpts from Bugliosi’s book is not an indication that I am in any way wringing my hands over defending guilty people. i represent guilty people because it comes with the territory of a job I like and believe to be “noble” and because I need to do so in order to make a living. But why is our job “noble” in the first place, and more than just a job? I think what makes it “noble” and exceedingly worthwhile has everything to do with that small fraction of defendants caught up in the system who are “innocent” (and I include in that category those who might be guilty of something but aren’t as guilty as the State is trying to make them out to be). Even the so-called “technicalities” in the system which we righteously use to try to free the guilty and the innocent alike exist to protect the innocent.

      1. We all have our own motivations.

        So what makes the job worthwhile to you has nothing to do with making things difficult for the State just for the sake of making things difficult for the State. . . Mr. “People v. State”?

      2. The reason why it should be difficult for the State to convict anyone, and why it’s the proper job of the criminal defense attorney to make it as difficult as possible for the State to convict his client (whether he’s “guilty” or “innocent”), is not to protect those truly guilty of real crimes but to protect the “innocent.” In order to protect the innocent we also have to defend the guilty.

        Even though the State has no moral authority, and its laws and the execution of its laws are only legitimate as often as they happen to be just, there is certainly such a thing as a real crime. Certainly the State itself wantonly commits many such real crimes on a daily basis. I believe real crime — that which has a real victim — should be punished, while also believing that it is better that 100 guilty men go free than that 1 innocent person suffer.

      3. Sorry, but no one’s guilty or innocent until they’ve been found guilty or not-guilty. So, in that sense, everyone’s innocent, unless found guilty.

        See?

      4. Sure, in that sense, but not in the sense that explains why we require proof beyond a reasonable doubt and have in place other hurdles before a person accused of a crime may be convicted. Suppose I’m mugged by a police officer, and I’m the only witness. I know he did it, but a jury doesn’t believe me, because why would a police officer mug somebody? The jury acquits, but the police officer is still guilty, in the sense that’s relevant to the point I was trying to make.

      5. The point being, we make it difficult to convict muggers not for the sake of muggers but for the sake of those falsely accused of being muggers. What makes our job worthwhile is not defending muggers, but defending muggers and those falsely accused of being muggers alike for the sake of those falsely accused of being muggers.

      6. So, John, bottom line as I understand it is that you and Bugliosi think you are competent to sort out those who are (factually) guilty from those who are (factually) innocent and, what’s more, to recognize when the punishment the system will impose is fair and when it is unfair.

        That must be a hell of a burden to bear.

        Even if I believed that of myself (it is clear to you by now that I don’t), I would see great value in making the government’s job difficult in the criminal courts for its own sake—not only because otherwise the State might find it easier to convict the (factually) innocent, but also because otherwise some small part of the State’s resources might be freed up to hamper our freedom in other ways.

  3. In the interests of full disclosure, here’s most of the rest of what Bugliosi had to say on the subject:

    “My position is not a matter of high ethics. It’s just that I would have a difficult time living with myself if I did otherwise. As a prosecutor, I handled some twenty-one first-degree murder cases before a jury. Every one of the defendants was convicted, and eight were on Death Row when, in 1972, the California state supreme court abolished the death penalty. How could I possibly start defending these same types of people in order to earn a living? If it came to that, I would rather stop practicing law and find another job. I am also not unmindful of the fact that were I to secure a not-guilty verdict for one of these defendants I represented, and he went out and did it again, I could rationalize all I wanted, but I would be partially responsible. If I had not deceived the jury, there would not have been a second murder.”

    So it seems that Bugliosi’s position as a defense attorney was indeed self-consciously attributable, at least partially, to his personal history as a prosecutor. And it appears that Bugliosi would concede your argument that his ethical reasoning was at some level lower than the highest.

  4. I’ve read your post a couple of times. What first struck me was Bugliosi’s assumption that a hypothetical accused person he might defend would be guilty.

    What next struck me was you, Mr Bennet: “Yet the vast majority of us cheerfully (and sometimes pro bono) represent people who haven’t convinced us of their innocence.” This can only mean that prior to convincing you of their innocence you initially presume all potential clients guilty. Some of these potential clients can convince you of their innocence and some can’t.

    The word ‘convince’ in short means to persuade. I do think that a statement such as: ‘Mr. Bennet, I’ve been accused of a crime I did not commit,’ would be lacking any of the attributes that would be within a plea for help meant to be persuasive. Perhaps you meant to state something like: ‘We cheerfully defend people who are unable to put or place themselves in a position that excludes them as suspects in the charged crime?’ Connotatively, in the context of your post, it seemed to me that you require something more.

    1. I’ll give a couple of clues, for posterity’s sake.

      First: by saying “people who haven’t convinced us of their innocence,” what point might I be trying to make about the people that Bugliosi claims to represent?

      Second: Have I convinced you that a train just went by my office? Does that mean that you presume that a train did not just go by? Does it mean that I tried to convince you? Does it mean that it matters to you whether a train just went by? Does it mean that you even care whether a train just went by my office?

  5. Mark – Just a couple things:

    I believe that when someone at one stage tries to understand the motivations of someone at a higher stage, which by the way is entirely possible within Kohlberg’s construct, it’s a positive step toward higher moral development. I’m not sure actual understanding can be achieved unaccompanied by the dissonance that leads to the next higher level.

    Idealism is a fine thing, But if such idealism is applied to a game that plays out somewhere between Stages Four and Five (and it would be generous to imply that a criminal courtroom reaches Stage Five with any regularity), can the practical effect of your idealism ever rise above the field on which you play? I’m not saying that you shouldn’t try, but – whatever your aims – is your effect not limited by the lowest common ethical denominator in operation?

    1. Thanks, Dennis.

      With regard to your second question, the field is a complex one, with at least a dozen players who matter. The State is trying to drag them down ethically by making them afraid; I am trying to raise them up by invoking the principles and values upon which the system was built. Sometimes I succeed.

  6. People guilty of serious crimes should definitely be punished for them. But the integrity of the judicial process is more important than any particular criminal, and that integrity is only assured when the state is _forced_, through effective opposition, to prove beyond a reasonable doubt that a particular person committed a particular crime, before punishing that person.

    When that happens, the community can sleep soundly, _knowing_ not only that the person in prison is actually guilty (and thus they are safe from the fear of joining him in his punishment unless they join him in his crimes) but that the guilty person is in prison (and thus the state didn’t just grab the first guy who _might_ have done it, lock him up, and leave the real criminal walking the streets).

    Incentives and results matter more than motives.

  7. The extra context that Mr. Kindley posted does not make VB look any better from an ethical standpoint. He appears to believe that the only way a (presumed) guilty defendant could be acquitted is if his defense counsel deceived the jury.

    I had always believed that many prosecutors believed that proposition, so it’s only slightly shocking to see it admitted.

  8. As a non-CDL, I am less disturbed by Bugliosi’s moral relativism—which in my experience in handling malicious prosecution cases is a given—but that “idealism” is a fool’s errand. I’m not speaking of the legal philosophical debate. Rather, “idealism” or “idealist” in the descriptive or prescriptive sense: one having high ideals. Ideals such as the “right to counsel”, the “presumption of innocence”, the “right to a fair trial”, the “right to remain silent”. These are ideals upon which a society is founded and governed under the rule of law. Yes, sometimes “idealism” is juxtaposed with the connotation that these ideals are unattainable or in conflict with the cold, harsh reality of daily life, or at odds with empirical observations of the real world.

    Yet, the word “ideal”, in common paralance, is an adjective denoting qualities of desirability, excellence or perfection. The legal system is broken. If judges are the gatekeepers and prosecutors the sentinels, then CDLs are the light brigade:

    Cannon to right of them,
    Cannon to left of them,
    Cannon behind them
    Volley’d and thunder’d;
    Storm’d at with shot and shell,
    While horse and hero fell,
    They that had fought so well
    Came thro’ the jaws of Death,
    Back from the mouth of hell,
    All that was left of them,
    Left of six hundred.

    When can their glory fade?
    O the wild charge they made!
    All the world wonder’d.
    Honor the charge they made!
    Honor the Light Brigade,
    Noble six hundred!

  9. As is far too often the case, I don’t get it. I generally have no idea whether my clients are guilty. If I did I suppose I’d be a witness. I get a pretty good idea of the strength of the admissible evidence against a client. Some cases are tougher than others to defend. I like the tough ones as intellectual challenges. But the concept of screening cases for factual innocence is an odd one. In any case, I am grateful to Kindley for focusing my attention on VB. Read Helter Skelter forever ago and am currently reading VB on Kennedy assassination: he marshal’s facts well and that is an inspiration.

  10. When I was in law school, my criminal procedure professor advised me not to start out in a DA’s office, but to do criminal defense right out of the gate. I regret not taking his advice, for after ten years as a prosecutor, it took me many more years to get to the point where I felt honorable about my job as a criminal defense attorney. I had been indoctrinated in the view that the role of the defense attorney was to thwart justice. This view is I think quite common among prosecutors. It is developed in part through frustration of young inexperienced prosecutors getting schooled by those tricky (more experienced) defense attorneys, and also through a corrupting influence that awesome power of that position. I remember to this day the first time I walked across the bridge from the parking lot to the Dallas Criminal Courts building as a defense attorney, only then did I fully appreciate the awesome power I had just relinquished.
    As I have matured I have taken a broader view. Our justice system is just that, a system, created by our society to as accurately and as fairly as possible decide key issues. It is an adversarial system. As an advocate for the defense, I am necessary for the system itself to function. The system adjudicates the labels of guilt or innocence, not me, or the prosecutor, although prosecutors routinely delude themselves into thinking they can do this by themselves. We, all of us, are mere mortals. True guilt or innocence is well beyond our pay grade. All we can do is to do our jobs, to be professionals, to advocate zealously for our clients, and hope that the system works. And as members of a society that aspires to justice, work together to change the system if and when changes become apparently necessary to more perfectly achieve that goal.

  11. In cases where the defendant is actually guilty, getting ALL of the elements of the crime before the bar, that might mitigate the crime to a lessor offense level, is the best moral effort by the defending attorney. Then, you plea bargain from there.

    It’s far better if your client doesn’t find out from some jail-house lawyer that you could have received better treatment during the bargaining session, and/or that the DA didn’t present all the elements to the Grand Jury and you wound up doing more time, when the proper charges would have gotten you less time and/or probation. That would be the Zen moment, when all efforts are exhausted for the defense and what could be done for the client was done.

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