Mimesis Law
21 November 2019

What Is The Role Of A Criminal Defense Lawyer?

November 22, 2016 (Fault Lines) – Two California professors recently faced off over the role of criminal defense lawyers in the justice system. According to the Sacramento Bee, Julie Mumma and Jimmy Martinez both teach criminal justice at Sacramento State University. They are adjunct professors in the Division of Criminal Justice at the University.

Mumma is a criminal defense lawyer. Martinez is a former sheriff’s deputy. Not surprisingly, they have very different views on criminal defense lawyers. Martinez, the ex-cop, sees criminal defense lawyers and their clients as a bunch of con artists.

Former Sacramento County sheriff’s deputy Jimmy Martinez contends criminal defendants are usually guilty and that their attorneys frequently lie in the courtroom.

Martinez’s statements reveal a deep misunderstanding about the criminal justice system.

Last week, Fault Lines had a debate about using race in jury selection. In the spirit of debate, which is slowly dying in America, both sides were presented. And in the spirit of the Internet, a commenter decided to weigh in without putting any thought into his comment:

You have defined the ends as “win, win, win.” You don’t care if the client is innocent or guilty. You don’t care if you destroy a witness’ reputation or career by admittedly misrepresenting and distorting the truth. Your goal is to get every client off so nobody ever goes to jail. And you think morals are relative.

His point, I guess, was that lawyers should be studying moral philosophy so that we can have… more thoughtful trials? Our kindly editor took issue with mixing morals and the law.

Sacramento State professor Jimmy Martinez falls down the same rabbit hole as the commenter, assuming the criminal justice system is one big fraud perpetrated by sly criminal defense lawyers stealing morality from our benevolent society of victims. Martinez knows this based on two of the most common sources of information available to people these days: some random book and his own opinion.

On the day Mumma and her students went to Martinez’s class, he presented a lecture on defense attorneys. Martinez said his lesson about their role comes largely from Alan Dershowitz’s book “The Best Defense.”

“The vast majority (of his clients) were guilty and he still got them off,” Martinez said. “The criminal justice system leans heavily toward the rights of the accused and the victims take a back seat.”

“I quote from a renowned lawyer,” Martinez said. “My opinion is based on my personal experiences.”

The Dershowitz book Martinez is using, written in 1983, is touted as:

The author presents his most famous, and infamous, cases and clients, and in the process, takes a critical, informed look at a legal system that he regards as deeply corrupt.

I haven’t read the book, and this isn’t a book review. But a lawyer who thinks the legal system is “deeply corrupt” is probably not the most credible source of information for your evaluation of that system. Especially if the book is your sole source of outside information.

But Martinez has another source which is more familiar to all of us. His own opinion. That seems to be the source of almost all of the information we are exposed to these days. Based on personal experiences, Martinez knows the criminal justice system is biased towards the defendants and ignores victims.

You have to be a complete idiot former police officer to make that statement. Biased towards the accused? Most criminal defense lawyers hear that, but have yet to step into this mythical defendant-friendly world people like Martinez speak about.

The reason that commenter and Martinez all think criminal defense lawyers are liars and immoral jackasses is because they don’t understand how the system works. But that seems to be a common refrain in America. And that is terrifying.

When the commenter accuses me of not caring about the guilt or innocence of my clients and only trying to win every case, he is both right and wrong.

As a person, I spend a great deal of time lying awake at night, drinking bourbon and stressing out over those things. Criminal defense lawyers are humans. We don’t want out home broken into or our spouses beaten either. But the accused citizen doesn’t need a sensitive human to hold his hand and cry together and do yoga. The accused citizen needs a lawyer.

As a lawyer, of course, I don’t care about guilt or innocence. Of course I try to win every case. That’s literally the only way our system can work. Martinez, and people like him, have made up their minds that most people are guilty and should be convicted. From the investigation through the arrest, case preparation, and prosecution, everything is done with the smug knowledge the right guy has been caught. Which is great, except for when the cops violate the Constitution in the process or the wrong guy has been caught.

So who is going to look out for that wrong guy? Not the police and prosecutors. Certainly not the judge. And definitely not the jury. None of those players can be bothered with actually critically looking at a case and thinking maybe the police get it wrong sometimes.

So that leaves defense lawyers to look out for your sorry ass. And in turn, those lawyers are called liars. And immoral. And whatever else you can think of to bounce around your echo chamber of self-righteousness.

The reason criminal defense lawyers try to win every case, without regard to anything other than winning, is because it tests the system. Instead of prejudging guilt and pretending to be all-knowing, these lawyers just wreck the government’s case. And if, after the wreck, there is still a conviction, maybe there is some validity to that conviction.

Maybe you don’t like that. Maybe you think the system would work best if there was no foil, and everybody worked together to hang the right guy on the courthouse square.

The problem with that thinking is that it doesn’t leave any room for thought or debate or disagreement. And ultimately, that is the role of the criminal defense lawyer. To present the other side. To give voice to the possibility of mistake. To break your biases and make you look at the facts. What looks to you like lying and a lack of morals is actually just the other side of the case. And no one should be sent to prison without you seeing that other side.

If some pompous old defense lawyer who writes books about his clients and an ex-cop who spouts off with a minimum of information don’t agree, consider the source. Or lack of source.

14 Comments on this post.

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  • Mark W. Bennett
    22 November 2016 at 11:50 am - Reply

    And I thought criminal defense lawyers tried to win every case because they had a constitutional duty to provide effective assistance of counsel. How naive of me. I have been involved in more than 4000 criminal cases spanning numerous districts and I have never known a defense lawyer or federal prosecutor to intentionally misrepresent anything to me or a jury.

    • Josh
      22 November 2016 at 12:34 pm - Reply

      I assume you are being sarcastic, Judge. I have been involved in just a fraction of that number of cases and have seen plenty of intentional misrepresentations.

      Good defense lawyers probably do think about effective assistance of counsel, which would make for an interesting post. Courts have really only paid lip service to that idea. You have to really screw up for any court, state or federal, to actually do something about it.

      But “effective assistance of counsel”, despite its abuse by judicial opinions, is not just some term we throw around so we can congratulate ourselves. It serves to test the entire judicial system.

  • ChrisPD
    22 November 2016 at 11:57 am - Reply

    To me, I see the criminal defense lawyer as the quality assurance of the justice system. We make sure that the police and prosecutors do their jobs to the minimum standards of staying within the Constitution and proving their cases beyond a reasonable doubt. If they can’t do those things they deserve to lose.

    • rob
      22 November 2016 at 12:22 pm - Reply

      But they are not the one’s who lose. It’s the next person that the guilty defendant goes out and rapes or murders that loses. Does that not matter at all?

      • Josh
        22 November 2016 at 12:26 pm - Reply

        Get better prosecutors. That’s the whole problem. How do you know he is guilty?

        • rob
          22 November 2016 at 12:35 pm - Reply

          It’s a common rhetorical ploy to pretend that we can ‘never really know’, I think that’s an intellectually dishonest argument. Lawyers represent people who have done terrible things to innocent people all the time, and they often damn well know that their client actually did it. They choose not to care. So fine, you don’t care. Stop expecting people to think that not caring about such things isn’t monstrous.

          • shg
            22 November 2016 at 12:40 pm -

            It can be a rhetorical ploy. It can be reality. Why build courtrooms if they’re all guilty, and guilty of the highest offense charged? Why have a Constitution if police/prosecutors/judges can obtain a guilty verdict in violation of it? The simpleton sees the system by virtue of his feelings about the outcome, using vapid words like “monstruous” to conceal the shallowness of his concern.

            The system is adversarial for a reason. It’s the government’s burden to respect constitutional rights, to prove guilty beyond a reasonable doubt, before it gets to punish a defendant. The defense lawyer can’t stop a conviction where the government does it’s job. There’s nothing “monstrous” about making a system work the way it was intended.

          • Josh
            22 November 2016 at 12:44 pm -

            The funny thing is when those people are sitting in my office crying about the government that just turned on them, they all of the sudden get it.

            So you don’t get it. But I bet you will some day. I won’t think you are a monster, and that might make you stop thinking I am a monster.

            Before you fire back that you will never do anything wrong, don’t bother. That’s what everybody says.

          • Jeff Gamso
            22 November 2016 at 12:50 pm -

            You are free, of course, to think that the Anglo-American system of justice – at least in its American incarnation – is badly conceived. The Queen of Hearts favored “Sentence first – verdict afterwards.” If you like that, so be it. But it’s not our way.

            We have the centuries of Western tradition supporting the theory that it’s better for the guilty to go free than for the innocent to be convicted. And our Constitution demands that the accused be afforded “the assistance of counsel for his defense” – not merely for show.

            Doesn’t mean we get to lie. Doesn’t mean we don’t prefer that rapists and murderers and child abusers not be haunting our streets. It does mean that we afford our clients what the Constitution demands – the presumption of innocence and a vigorous defense within the bounds of the law.

          • rob
            22 November 2016 at 1:08 pm -

            Josh: and maybe some day you will be close to someone who is sexually abused, and you will be faced with a defense attorney eager to unleash such an emotional battering that you will have to consider whether seeking justice is even worth it. Maybe you will ‘get it’ then.

      • ChrisPD
        22 November 2016 at 12:30 pm - Reply

        The reason a guilty defendant gets out is because the police and prosecutors didn’t do their job. They are the one who should be blamed. If defense lawyers don’t make sure the police and prosecutors do their job then the innocent get locked up with the guilty. It is on the police to gather evidence while following the laws as required of them by the Constitution. It is the prosecution to present that evidence in a way that persuades a jury beyond a reasonable doubt.

  • Josh
    22 November 2016 at 1:12 pm - Reply

    I am always happy to have people comment, especially when they disagree with me. It is what the world is missing. The art of debate.

    That being said, don’t you dare make an assumption about who I am or what I know.

  • Daniel
    23 November 2016 at 2:44 am - Reply

    I’m not worried that a guilty person goes free because of its rarity. What I am worried about is the innocent defendant who is convicted because of corrupt cops who lie through their teeth and prosecutors and judges who rarely question the police.

    Another related problem I ran across is the police officer who, while generally truthful, will exaggerate the severity of what they claim they saw, so that the judge will throw the book at the defendant rather than give the defendant a more fair sentence.

    Sorry, but I have seen defense attorneys who are not zealous because they think the defendant is guilty or the defendant is difficult but innocent (or guilty).

  • Peter Gerdes
    23 November 2016 at 6:38 am - Reply

    It is one thing to claim that CDLs shouldn’t consider moral philosophy etc… in the course of their work. That isn’t their work and it is appropriate, even desired, for them merely to fufil their role as lawyers.

    That is a plausible position. However, what you can’t do is take that position at the same time you claim that attorneys should (presumably in a moral sense since it can’t be in a legal/formal sense) violate the legal rules restricting how they can select jury members. Once you leave the confines of what the law dictates as appropriate behavior you are in the realm of moral philosophy like it or not.