The Ethics of Defense Lawyers

In 1993 the American Bar Association conducted a nationwide survey of all their members to gauge personality types. They concluded that 78% of lawyers (link) prefer to make decisions based on detached objectivity rather than taking into account personal feelings or values. This might seem the most reasonable approach to take to ensure a fair and effective justice system. After all, everybody is entitled to receive a fair trial.

There are many heroic defense lawyers out there doing tremendous work; there will be many ethical and unethical prosecutors as well. Take, for example, Marty Stroud, who prosecuted an innocent black man in the 1980s and sought the death penalty for him too. The innocent man in question, Glenn Ford, spent three decades on death row before being released after his conviction was quashed. To make matters worse, after being released, Ford was diagnosed with terminal cancer and was denied compensation for his time in prison. In the original case, Stroud failed to provide evidence to the defense that would have helped Ford’s case. Stroud now says that he was more interested in winning than justice. Stroud has since apologized and intimated that he feels haunted by his part in Ford’s conviction.

However, I wish to address another issue: While the institutional issues of prosecutorial misconduct and the fear that many prosecutors are interested only in securing a guilty verdict are real, it’s worth considering what sort of a person can shut out the ethical consideration that a guilty person may go free, especially when they know (or suspect) their client is guilty of a heinous crime. In many cases, there are no barriers to stop people representing themselves when, for example, a lawyer knows beyond a shadow of a doubt that they are guilty of a crime. This raises some interesting ethical questions for defense lawyers: Does representing somebody a lawyer suspects to be guilty of horrific crimes raise any ethical difficulties for lawyers?

I reached out to the bestselling author and anonymous lawyer known as The Secret Barrister who comments on high-profile court cases in the UK. I was interested to hear their insight so I asked them if advancing mitigation on behalf of somebody who might be guilty of horrific crimes ever caused them any ethical difficulty and whether there was a risk of ethical principles being breached by a defence lawyer in these cases. “Of course I have cases where I suspect my client is guilty but if he insists he is not, my job is to try to get him acquitted, not to form my own judgement. That’s the job of the jury, not lawyers.”

However, lawyers are human beings, too. They have their own value systems. They also have certain social and legal duties and obligations. Still, I wondered if trying to get a client (whom they suspect of being guilty but who is pleading innocent) acquitted would cause The Secret Barrister any discomfort on a private, unspoken level.

“Very rarely but sometimes. There are certain cases that hit you on a human level. But we’re trained to shake it off and deal with it clinically and unemotionally.” A lawyer might strongly suspect that a defendant is guilty of premeditated mass murder, for example, but they are obligated to help the accused and not their potential victims.

To some, it may be incomprehensible to shut out ethical considerations when justice is at stake. Many people could not conceive of themselves defending others guilty of heinous crimes. To see if I could gain a better understanding of why lawyers side with performing their social and legal duty over enacting justice I asked forensic psychologist Dr. Clarissa Cole for her thoughts: “There are two types of ethics at play here: professional ethics and personal ethics/morals. If a lawyer was to ‘throw the case’ due to their personal ethics, they would be going against their professional ethics and vice versa.”

Dr. Cole has a huge amount of experience dealing with criminals and lawyers alike. She consulted a lawyer colleague of hers to get his insight:

“When I asked my friend how he is able to ignore his personal ethics/morals while defending a client he knows is guilty, he responded ‘because I trust the system’. When I queried some more, he indicated that he is more easily able to push past those personal boundaries by having faith that the justice system (and ultimately the jury) will do what they’re supposed to do (i.e. find the defendant guilty). That said I think this friend of mine may be in the minority. My guess is that people self-select into the category their morals (or lack of) dictate. For instance, it’s more common to see people with more stringent personal moral beliefs (including religion) as prosecutors (or hopeful future prosecutors), while defense attorneys may not think of their religious affiliation as a guiding principle.”

Dr. Cole informed me that she also sees a trend of a certain type of person being attracted to the defense lawyer position. “Another trend I see is that of “activists” who become defense attorneys. In their case, it is their goal to uphold their political agenda, sometimes by getting a known criminal acquitted, in order to effect social change. It appears as though “the ends justify the means,” for them (i.e. getting one or several criminals released is worth it if it sends a message to the system or changes the public perception). This can fly in the face of both professional and personal ethics/morals, and be very dangerous, to boot.”

A lawyer might personally consider murdering lots of innocent people as abhorrent. However, there may be a superseding reason to defend a client against the state. They might, for example,  feel that their client, as an individual person, is deserving of certain rights, no matter their actions. Or they may feel that when compared to the actions taken by the state, which are taken as de facto legitimate, the actions taken by their client are of a lesser degree.

This was an interesting point because I had also spoken with French lawyer Isabelle Coutant-Peyre who represented Zacarius Moussaoui while he was awaiting trial for involvement in the September 11th attacks, of which he was later found guilty. Coutant-Peyre is also the lawyer and wife of Carlos The Jackal. I wanted to know her motivation for defending people accused of horrific crimes, especially in cases where the accused pleads guilty. I asked her if it caused her any ethical difficulty to look for flaws in the prosecution.

“I don’t really understand the interest but what I can tell is the US system is different than in France. In France, they ask people to plead guilty just to satisfy psychologically the victims and the public opinion. I am an attorney and not a judge.”

Coutant-Peyre tells me there is one person in particular that she would like to have represented.

“I remember I told in an interview many years before the killing of Osama Bin Laden under Obama presidency in a programme of fake breaking news, about news of OBL’s arrest and I was asked if I should accept to defend him if he appoint me in this case after he was arrested. Yes I will accept but with the conditions: in front of the court of the peoples and with Bush (he was the president at the time) on the bench of the accused.”

This seemed a politically-oriented way to frame the desire to represent Bin Laden. If true, would suggest that Coutant-Peyre places high value on both her personal beliefs when it comes to her professional work, as well as the moral status of the state. I asked Coutant-Peyre if it would have caused her any emotional difficulty to represent Bush.

“No of course I will not have defended Bush, I should put Bush in front of the court of the peoples to be prosecuted if OBL have been prosecuted and I should have ask OBL to be in the group of the plaintiffs. And later against Obama if he had not been killed by an order from Obama!”

It could be argued that Coutant-Peyre has a point about the legitimacy of state actors:  both Bush and Bin Laden were extremely wealthy people with lots of resources at their disposal.  Both chose to use their social and economic power to kill innocent people. Estimates of how many innocent civilians were murdered in foreign wars started by Bush’s administration, for example, vary wildly from between half a million to over a million dead. This is more than Idi Amin killed in Uganda. Civilian deaths decreased under Obama but deaths from drone strikes alone rose by 1000% under Obama’s presidency. On the other hand, Al-Qaeda under Bin Laden are thought to have murdered somewhere in the region of 5,000 people.

Coutant-Peyre told me she would defend Bin Laden but not Bush.  I asked her: What is the salient distinction between the two? At this point she abandoned the conversation.

Aside from social activists and people of conscience, I asked Dr. Cole what other types of people might be attracted to the role of defense lawyer, especially in cases where there is not much ambiguity as to the defendant’s guilt.

“Another is, potentially, a person who trends more toward having Antisocial Personality Disorder or psychopathy themselves. A good example of this might be a lawyer who works closely with a criminal organization like the Mob. In all likelihood s/he may be involved in many aspects of their criminal dealings (and benefitting from them). So it’s probably that this type of attorney falls higher on the psychopathy scale than his or her professional counterparts.

The last ‘type’ that comes to mind is a person who may suffer from something like Narcissistic Personality Disorder. If their sense of worth comes from their professional record, they may be obsessed with winning cases or beating their competition (the prosecutor). In a person like this, the client’s guilt may be immaterial to them as the only goal they’re focused on is ‘winning’. That said, I think that they’d be less likely to take on a client who is obviously guilty because a loss in court could blemish their record. I.e. it has nothing to do with personal morals/ethics and everything to do with their reputation as a successful attorney.”  

What might a defense lawyer do in cases where the overarching ethical principle that bad moral actors deserve appropriately ascribing blame or innocence conflict with professionalism and social and legal obligation? Is there, perhaps, the implicit premise that what makes a result of a court case ‘just’ is the process, rather than the correct determination of guilt? Dr. Cole has some advice for defense lawyers dealing with these problems: “My last notion regarding this is that there is a very easy way to avoid such conflicts, should they occur (and I have done so myself, on occasion): If there is something about the case that ruffles your personal ethical feathers, refer it to a colleague. That way the client has the best possible chance of fair representation, and you won’t have to worry about tamping down or ignoring your own moral dilemma in the process. After all, that’s what ethics is all about: retaining professional and personal integrity, while providing the client and the system/public the best possible version of yourself. Anything short of that, and you lose…no matter what the verdict is.”

It’s easy to see that intersubjective deliberation such as that described by Dr. Cole could provide peace of mind if a case is particularly troubling. Calling on a colleague to take over a case that may be better suited to them would surely alleviate any concerns presented to a lawyer over possible conflict between personal and professional ethics. And recusing oneself from a case in which a defense lawyer no longer believes they can defend a person they believe to be guilty may be, depending on how one looks at the result, simply pushing the problem on to the shoulders of another defense lawyer. Perhaps, as in the cases of prosecutors that do not care about whether the defendant is innocent or guilty, and who may be deserving of moral censure for their refusal to tackle these questions, there exists a related (although, in this current political and social climate, less immediately problematic) concern that should not be neglected.

Jamie Flook

Jamie Flook (@FlookJamie) has written for numerous publications and websites such as Popular Science, History Revealed, The Humanist, Boing Boing, The Huffington Post and many more.