In his call for the return of the American trial lawyer, Lloyd Paul Stryker wrote that “‘I have frequently had to undertake murder cases of the greatest of complexity and difficulty, not because I wanted to, but because of the unwritten law that I would not refuse.’ The American advocate has more liberty of choice, but he is unworthy of the name if he declines a case on the sole ground that it is unpopular. For in the law unpopularity often is the post of Honor.” The Art of Advocacy: A Plea for the Renaissance of the Trial Lawyer(1954) by Lloyd Paul Stryker, Equinox Publishing (Asia) PTE Ltd.
Attorney Stryker was answering the very question that has hung over the summer air the past several months as attorneys across the country have been called to represent a Boston bomber, a legendary mobster, a professional football player, a neighborhood watchman, a 17-year-old school shooter in Chardon, Ohio, a high school football player accused of rape in Steubenville, Ohio, and another mentally ill teenager who opened fire in a crowded movie theatre – how does a criminal defense lawyer represent people accused of those heinous, sad and depraved crimes? And who can forget the lawyers representing the detainees at Guantanamo Bay – some of the finest criminal defense lawyers and constitutional legal scholars in the country called together to defend men and women accused of plotting against the United States. How do we defend people accused of such brutal and treasonous acts?
The answer is Duty. The answer is in Harper Lee’s To Kill A Mockingbird, “there are some men (and women) in this world who were born to do our unpleasant jobs for us.” Fifty years ago, in the case of Gideon v. Wainwright, the United State Supreme Court declared that every person accused of crime in which his or her liberty was at stake must be afforded an attorney. The Court declared that every person had the constitutional right to, at the very least, competent counsel. So, there are those of us who have chosen to fulfill that promise. Not because we condone the actions of our clients; not because we necessarily like all of our clients as human beings; but because we believe in the Constitution. We believe we were called to stand up – oftentimes alone with only our client at our side – against the mighty force of the State and its law enforcement investigative agencies, access to free forensic science, and nearly unlimited funding.
I was recently asked if there was any type of criminal case that I would not defend. My answer was simply, “no.” Understand, I do not want to defend someone accused of murder or rape or some other crime where a victim has been brutalized. However, that is not because I am not willing to defend the accused but because it is always tragic for the victim, the victim’s family and the community as a whole. Essentially, I would rather the situation simply never arise here or anywhere. The unfortunate reality is that people take life, they rape and brutalize one another and God-forbid, they harm children and other innocent creatures. And when they do, the Rule of Law in this country entitles everyone to a defense.
Some would argue that the criminal defense lawyer has no conscience; that we take some sick pleasure in getting guilty people out of trouble; or that we do not care about justice or guilt or innocence. But this year alone, the Ohio criminal defense bar has lost five (5) members to suicide. At a recent seminar on mental health issues in attorneys, criminal defense lawyers reported the highest levels of depression, suicidal ideations, and alcoholism. Every case haunts us. We don’t only get to know the victim and see the full nature and extent of the injuries, physical or emotional, which he or she endured; but we learn about our clients.
We learn about their parents, their childhoods, their mistakes and their victories. Oftentimes, their fathers are in prison, and/or their mothers struggled on their own to do the best could. Oftentimes when they were 16 or 17 years old someone they trusted gave them something which led them to try something else which led them to make worse and worse decisions. And sadly, we begin to empathize with their plight. We begin to see that we were just one bad decision from those very same shackles that sit across the table from us. Essentially, we see the humanity on both sides of the courtroom.
Those emotions tearing you in a thousand different ways, coupled with the innocent men you have seen carted off to prison and the guilty men you have seen walk free, your heart becomes heavier and harder. Late nights spent at the jail, talking and arguing with your clients about their case. The regret and the constant hours questioning yourself: “Did I do the right thing? Was my closing argument good enough? If I would have done this or that, would the outcome have been different.” The hours of investigation, research, motion drafting and arguing, and trial preparation at a court-appointed hourly rate that is less than half of your normal hourly rate.
In the end, there is nothing sexy or lucrative about defending those accused of crimes. It is a passion. It is an obsession. It is the recognition that we have a duty under the Constitution to work harder and longer to give our clients a fighting chance against the heavy hand and unlimited resources of the State. The scales of justice are supposed to begin at even balance when the gavel strikes and the jury is seated; but only when the defender has given every inch of his intelligence, time, and creativity is that even remotely a reality.
It reminds me of the Old Testament story of the burning in which Moses is tending Jethro’s flock. As he nears the mountain of Horeb, he comes upon a burning bush. And although the fire raged, the bush was not consumed; and as Moses moved closer in to get a look, the voice of God called out to, “Draw not nigh hither: put off thy shoes from off thy fee, for the place whereon thy stand is holy ground.”
It is the same for the true criminal defense lawyer. We have enlisted in the fight for the duration. We cannot turn back. We are given to stand on behalf of those who cannot stand for themselves, and we fight upon the lines that we have drawn, defending to our last breath for the place whereon thy stand – a court of law – is our holiest of ground.