Three questions a criminal-defense lawyer should ask herself when considering action in aid of the defense in a criminal case:
- Is the action effective?;
- Is the action legal?; and
- Is the action ethical?
The first inquiry is not, “will the action succeed.” but “do the chances that it will make things better outweigh the chances that it will make things worse?” Because this is a very complex inquiry, requiring broad and deep knowledge (the law, the facts, human nature, culture, strategy, tactics) as well as wisdom and the ability to let go of ego, it is where good criminal-defense lawyers earn their keep, and it is fraught with danger for others.
If the action fails the first inquiry, the lawyer should not engage in it, with a few exceptions: decisions that are strictly the client’s (with the lawyer’s advice, of course). Among them:
- Putting or not putting the client on the stand to testify;
- Helping the client plead guilty or not guilty;
- Waiving a jury trial;
- Requesting judge or jury punishment;
- Filing or not filing an application for probation; and
- Requesting or not requesting a lesser-included-offense instruction in the jury charge.
If the proposed action passes the first inquiry (or does not but is chosen by the client), it should be taken if it passes the second and third inquiries.
The second inquiry is whether the action is legal. In this inquiry I include the question of whether the action would violate disciplinary rules: those rules are not “ethics” but law. If the lawyer or the client might be punished for taking the action, it is not legal.
If the proposed action is not legal, the criminal-defense lawyer should not take it. There is a possible exception to this: if the law is not just, the lawyer might not follow it. We expect juries to nullify unjust laws; we shouldn’t be closed to the idea of doing so ourselves. Acting for a client in violation of an unjust law is harsh and dangerous medicine, though, and it shouldn’t be taken without consulting more-objective counsel and following Bennett’s Law of Rules.
If the action passes the second inquiry, whether because it is not illegal or because the law forbidding it is unjust and the lawyer is willing to pay the penalty for breaking it, it should be taken if it passes the third inquiry: Is it ethical?
Never trust a lawyer who takes the disciplinary rules as ethical gospel. Ethics are not dictated by government. There are things that the State Bar forbids that are ethical, and there are things that the State Bar permits that are unethical.
What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?
The question arose because of this post by Charles Thomas. There’s a great deal wrong with it, but the worst of it is this:
When I handle a sex case, there are two things I will not do — slut shame or victim blame. It’s reprehensible and has no place in the judicial process (I also note that no matter how many times I have seen it tried, it never works, but that is for another post). I get good results for my clients, fighting the cases that need fighting, working out the ones we can resolve, and I would like to think I do so fairly and respectfully.
So. Suppose that the action the lawyer is considering is (something that feminists would consider) “victim blaming”—for example, asserting that both the complainant and the defendant were equally intoxicated.
Is it effective? Absolutely. Because people who believe that a woman’s body belongs to her can want to protect her from the culpable acts of others without protecting her from her own mistakes, and just people can refuse to punish a person because he has a penis and his partner repents.
Some (things that feminists might describe as) slut shaming and victim blaming should be effective parts of the defense of a criminal case. Lack of effective consent is an element of sexual assault; the existence of effective consent is a defense. Evidence of effective consent can look—to the person who has already decided that the complainant is a victim—a lot like slut shaming or victim blaming.
Other slut shaming and victim blaming perhaps ought, in a perfect world, to have no place in the judicial process. But if we live in (what Thomas describes as) a rape culture, they do. We try criminal cases within the culture. So Thomas is deceiving himself when he says “it doesn’t work.” What works in the criminal-justice system—works to get police officers not to pursue an investigation, works to get grand juries to no-bill, works to get prosecutors to dismiss—is what works in the culture. If (things that feminists describe as) slut shaming and victim blaming didn’t work in the criminal-justice system, that would be evidence that we don’t have (what feminists describe as) rape culture.
So back to our algorithm for deciding whether to take an action in defense of a criminal case, as applied to slut shaming or victim blaming in a sex assault case.
Is it effective? Not always, but in some cases, yes.
Is it legal? Certainly.
Is it ethical? Thomas says no. He values fairness and respect too highly to engage in slut shaming or victim blaming.
So back, again, to the question: What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?
Refusing to engage in effective and legal action on behalf of the client because of your scruples may be acceptable in only one situation: where the client, before choosing you, gave informed consent to your fastidiousness. Otherwise, the criminal-defense lawyer must put her client’s interests first, above even her own ethical qualms.
If Thomas told his clients, “in your case, there are two things I will not do — slut shame or victim blame,” explained what that might mean to their case, and they hired him anyway, then he’d be free to be ethically fussy. But since he’s deceiving himself about the efficacy in criminal cases of slut shaming and victim blaming, I question whether his clients can give informed consent. And if some of his sex-offense clients are appointed, then shame on Thomas: a lawyer cannot be ethically fussy in the defense of someone who has not chosen her.
In my experience (longer, wider, and deeper than Thomas’s—I’ve known him through Twitter since he was looking for a job in 2008), when people hire a criminal-defense lawyer, they don’t want someone who will value fairness and respect to the complainant above the client’s interests. They want a fighting chance, even if that means hurting the complainant’s feelings.
Also in my experience, regret gets investigated and prosecuted. Why a criminal-defense lawyer would call that “a bogeyman legend,” as Thomas does, baffles me. That is polemic masquerading as practical knowledge. Thomas is free not to take sexual-assault cases, in which the wet work that might be required would offend his delicate radfem-ally sensibilities. He isn’t free to take such cases and leave something undone to make himself feel better about himself or to make a better society. As Cicero wrote, “It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.”
A lawyer’s ethics are personal to her, and once she’s on the case they should generally be kept that way.