How Can You Represent Those People? (Abbe Smith & Monroe H. Freedman eds., 2013).
Every criminal defense lawyer has been asked The Question: “How can you defend those people?” Even lawyers who do not represent persons accused of crimes have undoubtedly had to deal with the indignation directed at the lawyers representing the most recent high-profile, presumed-guilty defendants—O.J. Simpson, the detainees at Guantánamo Bay, alleged “American Taliban” terrorist John Walker Lindh, the Oklahoma City federal building or Boston Marathon bombing suspects, the man accused of being the guard known as “Ivan the Terrible” at the Treblinka concentration camp. The Question is about moral agency. How can you, an ordinary person, not only associate with but also actively assist terrible people in escaping punishment for terrible crimes?
Abbe Smith and Monroe Freedman have both written eloquently in answer to The Question.1 Now they have compiled a number of essays—some in the form in which they were previously published, some updated for this book, and some entirely new—written by advocates and academics who take seriously the problem of giving an account for one’s actions within a professional role. All of the essays, in one way or another, address the persistence of moral agency. Inside a criminal defense lawyer there is an ordinary person, with ordinary-person values, committed to non-violence and respect for the rights of others. What is it like to be that person? In this way the essays move beyond justification to consider the issue of motivation. In a classic essay reprinted in this recent book, Barbara Babcock surveys a number of responses, including:
- The Constitutionalist’s Answer. Criminal defense lawyers protect the bedrock individual rights of our constitutional order. The role of the criminal defense lawyer gains not only justification but also nobility from this effort. This is the answer that Monroe Freedman has steadfastly given to The Question.
- The Civil Libertarian’s Answer. If we do not protect the rights of people accused of awful crimes, we—as a society—will lack the commitment to protect the rights of all people. As Martin Niemöller puts it in his poem, “First they came for the communists, and I did not speak out—because I was not a communist . . . .”
- The Legal Positivist’s Answer. Truth and justice are law-dependent concepts, so there really is no role-independent way of concluding that a client is guilty and, therefore, no role-independent foundation for condemning the actions of criminal defense attorneys. A less-sophistical version of this answer appeals to all that is uncertain and unknowable about an event, including the very-real possibility that an accused defendant is innocent of the crime charged. In one of the most arresting essays in this volume, Joseph Margulies describes the horrific odyssey of an Australian Muslim who happened to be picked up in Pakistan soon after the 9/11 attacks, was repeatedly subjected to torture, and was released three years later, never having been charged with any wrongdoing.2
- The Humanitarian’s Answer. Criminal defendants are human beings, too—children of God, as Sister Helen Prejean would note—and deserve compassion and to have someone standing by them as they are processed through the dehumanizing machinery of the criminal justice system. In a more secular idiom, a jury needs to be able to see the inner, vulnerable, 11-year-old boy who lived through unspeakable abuses to become a capital defendant.3
Significantly, all of these arguments are intended to generate reasons that can be endorsed from the point of view of the lawyer—to constitute what Daniel Markovits calls a first-personal approach to ethics.4 Even lawyers in common-law systems with a cab-rank rule, in which declining representation on the grounds of the reprehensibility of the client is unethical, can appreciate the additional need for a first-personal justification. It is one thing to say a legal norm, like the cab-rank rule, requires representation; it is quite another to endorse, from the point of view of one’s own moral agency, the representation. Markovits’s approach to legal ethics requires two separate justifications: (1) An impartial, or third-personal, argument showing that a social role is justified and that an action taken by an occupant of that role is required by the role for the realization of the ends for which it is constituted.5 Much of the traditional debate in theoretical legal ethics is over whether these arguments can succeed. (2) A first-personal argument appealing to the concern all persons have for living a life characterized by integrity, where integrity means, essentially, having a life worthy of commitment, endorsement, and a kind of pride of authorship. Integrity is a way of representing the moral agency that persists while people act in social roles. In terms of The Question, it places stress on the person to whom it is addressed: “How can you represent those people?” You, in light of the kind of person you are, and the other things that you believe constitute a life well-lived.
One of the highlights of the book is the dénouement of the Freedman-Tigar debate, between Freedman and Michael Tigar—a celebrated civil rights attorney who represented, among other notorious clients, one of the accused Oklahoma City bombers, Terry Nichols. The occasion for the debate was Tigar’s representation of John Demjanjuk, accused of having committed atrocities as a guard at a Nazi concentration camp. Freedman pointed out that Tigar had once criticized a large law firm for representing General Motors in an environmental case, urging them to ask this version of The Question:
Which side are you on? The decision is whether or not you will commit your skills, your talents, your resources to the vindication of the interests of the vast majority of Americans or the vindication of the interests of . . . the minority of Americans who own the instruments of pollution and repression.6
Freedman asked the obvious follow-up question: If a law firm is morally accountable for its decision to commit its talents and resources to defending the owners of the instruments of pollution and repression, what then can one say about the decision to represent someone whose conduct was so infamous that he was known as “Ivan the Terrible”? Tigar responded with a moral argument:
We must remember the Holocaust, and we should pursue and punish its perpetrators. We dishonor that memory and besmirch the pursuit if we fail to accord those accused of Holocaust crimes the same measure of legality and due process that we would give to anyone accused of wrongdoing. Precisely because a charge of culpable participation in the Holocaust is so damning, the method of judgment whether such a charge is true should be above reproach.7
Is this an argument that one can endorse from the first-personal point-of-view? Can a lawyer represent John Demjanjuk with integrity? It is one thing to believe that a person accused of a serious crime is entitled to a fair trial. It is another to decide to commit one’s own skills and talents to defending that person. In effect, Tigar concedes Freedman’s point. A lawyer does owe an obligation of justification. But there are abundant opportunities for justification when one is living and practicing law in a society characterized by inequality, abuses of power, active and unconscious racism, and a sclerotic and unaccountable political system.
Lawyers may be tempted to roll their eyes when hearing yet another version of The Question. Hasn’t enough been said already to establish, for once and for all, that lawyers like John Adams and Clarence Darrow are authentic American heroes for a reason, because they embody our commitment to treating everyone as equal under the law? The importance of this book is, in part, the reminder to lawyers that every generation has to answer The Question again, and that the process of doing so is an opportunity to reflect not only on the values of the legal profession, but on more fundamental matters such as the meaning of human dignity, compassion, justice, and mercy. The reflection itself may be agonizing, as explained by two capital defense attorneys:
[O]ur consciences are heavy for so many reasons—the double-edged nature of our “successes” (most often, saving a client from the death chamber means he will vanish into prison for the rest of his natural life), the permanency of our failures, the constant gnawing guilt that we could have done more—but, for us, it is the pain we inflict every day that is our deepest wound: if we want our clients to live we will inevitably end up hurting them, their families, and ourselves in the process . . . . [A]s much as we want to help them with their other needs, we need their stories more. So we start asking questions. We dig. We probe. And we push onward, even when it’s obvious that what we are unearthing hurts: a client so addicted to drugs that he traded the car he’d been living in for two hits of crack; a client who was forced to watch his stepfather rape his younger sister and then dump her body in a tub of cold water in an attempt to stanch the bleeding; a client who, as a small child, slept on the floor of a crack house surrounded by rotting garbage and strangers trading sex for drugs; a client so defaced by a childhood illness that his father would not touch him; a client who “permitted” grown men to perform sex on him for slices of pizza.8
After encountering many of the essays in this volume, a reader comes away with a new version of The Question—how can one not represent these people? This book ultimately succeeds because it asks both the justification and the integrity question and does so by moving readers to experience the values of defending accused persons from the first-personal point-of-view. It is difficult to come away from the book feeling anything other than intense gratitude and admiration for the lawyers who are called to be criminal defenders.
- Abbe Smith, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925 (2000); Monroe H. Freedman, The Lawyer’s Moral Obligation of Justification, 74 Texas L. Rev. 111 (1995).
- Joseph Margulies, Ruminations on Us and Them, in How Can You Represent Those People?, supra, pp. 101–07.
- William R. Montross, Jr. and Meghan Shapiro, Wrecking Life: When the State Seeks to Kill, in How Can You Represent Those People?, supra, p. 113.
- Daniel Markovits, A Modern Legal Ethics (2008).
- This structure is from David Luban’s fourfold root of sufficient reasoning, in Lawyers and Justice.
- Quoted in The Lawyer’s Moral Obligation of Justification, supra, p. 113.
- Michael E. Tigar, “Setting the Record Straight on the Defense of John Demjanjuk,” Legal Times (Sept. 6, 1993), reprinted in Monroe Freedman & Abbe Smith, Understanding Lawyers’ Ethics (4th ed., 2010), Appendix A, p. 371.
- Montross and Shapiro, supra, pp. 114–15.