I could know I was defending the guilty, not merely assume it, only if the clients told me they were guilty. That only happened a few times, and I felt no moral qualms even in those situations. For example, Mary was a hooker on Brooklyn’s Coney Island Avenue–not the high-rent avenue then for anyone, and certainly not for a prostitute. She would do just about anything for a bit of food and some drugs. An undercover cop approached her and asked if she knew where he could make a big drug buy. She didn’t, but she asked what was in it for her if she could find out. He said $50. This was the equivalent of five or ten tricks for her.
She located where to get the drugs, and when the undercover returned, she took him to a seller in Harlem. She left after pocketing five tens. The cop made the buy, and Mary was arrested for aiding the sale. She told me this. She was guilty. She was not offered a plea bargain. We went to trial.
If convicted, the sentencing law required that she get a life sentence with at least a fifteen to twenty-five year minimum. That meant that she would have to serve whatever minimum a sentencing judge imposed before she would be eligible for parole, and, of course, she could be imprisoned until she died. I did not think such punishment just. She did something illegal, but a person such as she, who was barely surviving, could hardly turn down $50, and for that $50, offered to her by the police, she would get a life sentence. She was convicted. She got life as was required. And I felt that it was an injustice. If, by some miracle, I had gotten an acquittal, I would have rejoiced.
I did think about the consequences of one acquittal, however. I represented a man, Ron, on the illegal possession of a gun. He told me a story that had some plausibility but was not likely to be true. The trial went surprisingly well. From the evidence, I began to believe that he might be innocent, and to my surprise, he was acquitted.
A few months later he called me. He was in jail again. He was charged with rape. I wondered what I had done. Had my acquittal gotten a woman raped? He wanted me to represent him, but his case had not been assigned to me, and I said no. Later the attorney who represented him on that new charge told me that it was as phony a rape case as any he had ever seen. Ron was acquitted of the rape charge, too. He was apparently innocent.
This sequence bothered me. Most often after an acquittal, I had no further contact with the defendant. Ron’s situation made me wonder if I had the moral luxury of feeling good about an acquittal simply because normally I did know whether the person I had helped free went on to do bad things. Would I have more doubts about what I did if I always found out what happened after a client was acquitted?
On the other hand, Ron made me think that for one of the few times I had abandoned my defender ethic. I had brushed him off instead of defending him again because I did not want to confront the possibility that he had committed a rape for which I perhaps should have felt a responsibility.
Almost always, however, I could do the work and do it without moral qualms. I learned that the trial system works better than many believe. Attorneys want to believe that their skills and tactics make adifference. Once in a while the attorney does have a huge effect, but generally the attorney, at best, can only be a little bit better than the evidence presented at trial. My experience and my scholarly work convince me that almost always the verdict follows the evidence. If there is strong evidence that a person is guilty, almost always a guilty verdict follows.
But the real reason I could do the work is that even though I respect police work, I also fear the power the police have. The same for prosecutors and judges. That fear allowed me to be a defender. The poor and the outcast need someone to stand up for them against a powerful government and its representatives.
(To be continued sporadically)
Related Post: May 29, 2019.