Our Criminal Courts - The Role of Defense Counsel

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Imagine yourself as a young adult, pulled from friends and family and called upon to defend your country in a foreign land. One day, while on guard duty with your platoon, you're suddenly surrounded by a group of hostile, threatening people--a jeering, taunting mob, probably armed, and stirred to anger by faceless voices in the darkness calling on them to fire. A shot rings out--your platoon returns fire--and the next day, you're hauled into court and charged with murder. Your case is set for trial, and the only jury around is made up of the very same mob that was threatening you the night before.

The Critical Role of Defense Counsel

Defense lawyers are called upon by our system of justice for a variety of tasks. They explain to their clients what is happening, and make sure that each defendant knows his rights, and is fully aware of what is happening. As defense counsel, the lawyer is charged with protecting those rights, and ensuring that the client receives the protections afforded to every citizen by our laws. The lawyer will take over dealing with the prosecution, call and examine any witnesses in court, and do everything the law allows to keep his client from harm--or, at the least, to minimize the damage. This means challenging the prosecution's case, its conduct, and on occasion, the very laws that govern the case.

We often take these protections for granted, or scoff at them as mere "technicalities" that do little but allow criminals to escape justice. It is easy, and often tempting, to dismiss defense lawyers (and, for that matter, all lawyers) as professional hacks, whose only function is to confuse juries and confound courts. And sometimes, when defending people who are clearly guilty, it may seem that defense lawyers are a needless extravagance, who only get in the way of protecting people from the worst elements of society. But just as crimes come in a variety of shapes and sizes, criminals are often indistinguishable from the ordinary citizen, a fact that some of us only come to realize when we find ourselves seated at the defendant's table, with fingers pointing at us. It is then that we realize just how critical a vigorous and independent defense bar is to a free society--allowing ordinary citizens to challenge the actions of their own government. Viewed in this light, the bedrock of American liberty is our right to use the rules we have all agreed to live by to defend ourselves in a public setting, where the actions of the same government that seeks to condemn us must prove that we have broken the law.

Defense lawyers don't exist just to make everyone else's life difficult. And their job is a critical, if often misunderstood safeguard against tyranny. Just imagine what would happen if the government could decide whom to jail--without the messiness of subjecting their actions to the test of law. The freedom of all of us would be in the hands of government bureaucrats--people, like all others, who have their likes, dislikes, biases, and petty grievances.

A Safeguard of Liberty

In large measure, the law exists to protect us from bullies. But without the means of challenging the actions of our own government, there would be little protection for the common citizen against a bully who happened to wear a policeman's badge, or a prosecutor's suit, or who happened to enjoy the friendship of someone for whom justice means doing right by his friends. And if you should ever find yourself on the wrong end of action taken by the government, you will find that the ability to resort to the law to defend yourself will be critical. Among the first casualties of Nazi Germany and Stalinist Russia was the independence of the courts and the legal profession. Once those bulwarks against tyranny fell, there was nothing to protect common people against the unbridled assertion of governmental power--no matter how misguided, petty, or malevolent it might prove to be. But it is the rare government that will attack its own citizens directly: instead, the attacks come against marginal groups, ones that nobody would rise to defend, and who seem to everyone to be a threat to the security of the state. Unfortunately, those threats never seemed to end; and so the knocks on doors of enemies of the state continued, as the government kept finding new enemies to fight, and new threats to fear.

The example cited at the beginning is from one of the most famous confrontations in American History--told from the side of the defendant, rather than the victim. It was the Boston Massacre, which arose at a time of growing tensions between the Colonies and Great Britain. The encounter between soldiers and the angry mob led to shots--nobody knows for sure who fired the first one, although some testimony indicated that it was a terrified British soldier--and in a country without a strong defense bar, the young soldiers would likely have been swiftly taken out and hung, if not by the Law, then by the mob itself.

Thanks to a courageous Boston attorney, the defendants received a fair trial and most were acquitted on grounds of self-defense, the sentiments of the mob notwithstanding. A couple were convicted of the lesser charge of manslaughter and released--the proper verdict when emotions and provocations don't quite excuse a homicide, but make it less an outrage and more a fallible human reaction to extreme stress.

The defense lawyer was a prominent member of the state bar, who later served his country in a variety of ways--statesman, ambassador, signer of the Declaration of Independence, and the second president of the new United States.

It was John Adams...patriot and rebel, for the defense.

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