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On March 19 2011, Thomas Pogge responded to a question posed on March 17 concerning (inter alia) the morality of an attorney's decision to represent a person accused of a serious crime in circumstances in which the attorney has "very strong reason to believe" that the client is guilty. The response suggests that "in view of the enormous damage done by repeat offenders who have been wrongly acquitted earlier ...... such a defense attorney should decline the case or resign from it".

With all due respect to the learned philosopher, this suggestion overlooks a fundamental precept of procedural justice in all criminal trials - "an accused person is presumed innocent until proven beyond any reasonable doubt to be guilty".

Only a serious misunderstanding of the role of a defense attorney can give rise to a suggestion that my attorney should resign from my case simply on the basis of her own (subjective?) belief that my acquittal in a previous trial was "wrong" and that she believes that the prosecutor's case is well-founded. Even jurors are routinely instructed not to allow their own beliefs to form the basis for deciding that an accused person is guilty - they must examine the totality of the evidence placed before the Court, and only if they are satisfied beyond any reasonable doubt that the prosecutor has proved every element of the charges beyond any reasonable doubt, may they bring in a verdict of "guilty". Surely I am entitled to be represented by a qualified attorney in defending myself against whatever charges the prosecution may decide to level against me?

March 23, 2011

Response from Thomas Pogge on April 1, 2011

I am in full agreement with the precept that an accused person is to be presumed innocent until proven beyond a reasonable doubt to be guilty. But this precept is not violated when your defense attorney declines your case or resigns from it. This is so because the presumption applies to the state and its agents and agencies. The precept does not forbid citizens to form the opinion that some accused person is guilty. Nor does it forbid citizens to act on such opinions. You are perfectly free, for example, to change your mind about buying Joe's used car or to warn your daughter against dating Joe, on the sole ground that you have just learned of a criminal case of fraud against Joe and of the evidence presented against him.

I agree that an accused person is entitled to be represented by a qualified attorney. But again, this right is not violated when one attorney declines or resigns. Compare: your right to get married is not violated when the person you have chosen as your spouse declines -- or even if many potential spouses turn you down. You'll have to keep trying until you find someone willing to get married to you. And, similarly, as a person accused you need to keep trying until you find a lawyer willing to take your case along with the plea you want her to enter on your behalf.

I also agree that jurors must examine the totality of the evidence placed before the Court and may bring a verdict of "guilty" only if they are fully satisfied of the charges beyond a reasonable doubt. Perhaps you can go from there to the proposition that a defense attorney should not be influenced in the way she conducts the defense by her own beliefs about her client's guilt or innocence. But even if this is right, it's irrelevant to my point which was not about how your defense attorney should conduct your defense once she has taken it on, but about whether she should be defending you at all. Do you wish to say that defense attorneys are morally free to turn down only those clients who have been shown beyond reasonable doubt to be guilty? This is surely false. A defense attorney may resign when she becomes convinced that you don't have the money to pay her. So why should it be impermissible for her to resign when she becomes convinced that your "not guilty" plea is false to the facts?

To put this in perspective, let's think about a concrete case with you in the role of top-of-the-line defense attorney. A potential client comes to you and offers you a large fee for defending him against a rape charge. Talking through the details of the case with him, you become convinced that he has committed the crime. He does not deny this, but he wants to plead "not guilty". He believes that, as a star attorney, you can surely create reasonable doubt in the mind of at least one juror. You agree that you can achieve his acquittal by creating some doubt about whether the victim had not signaled consent after all. You could do this by delving into the victim's previous sexual encounters and by getting her confused or angry in a way that undermines her credibility for at least one of the jurors. You conclude that, if you take the case, then he will be acquitted.

Most would say (though you seem to disagree) that you do nothing wrong when you turn down the case. In particular, you do nothing wrong by turning it down for the reason that you do not want to help someone you deem guilty of rape to escape punishment. It might be said against this that, if every attorney turned down this case, then the accused would have no attorney. In response, I don't think this hypothetical is relevant in a context where there are plenty of other attorneys willing to take the case. If the hypothetical were morally relevant, then analogues of it would lead to rather absurd conclusions. For example: is it morally permissible for you to turn down a case because you want to preserve enough leisure time? Presumably not, because if all attorneys were as busy and as protective of their leisure time as you are, then the defendant in question would find no defense attorney. This implication is absurd in a world where in fact plenty of defense attorneys are looking for clients. And just as you may turn down a case because you want to preserve your leisure time, you may also turn it down because you don't want to contribute to what you regard as a miscarriage of justice nor inflict emotional injury and humiliation upon a person you regard as a rape victim.

Once it is accepted that turning down the case is morally permissible, I don't see a good rationale for denying that this is what you ought to do. If you accept the case and mount a successful defense, you will contribute to what, according to your own best judgment, are substantial harms: you will contribute to a miscarriage of justice, you will contribute to enabling and encouraging your client to re-offend, you will contribute to reducing the deterrent effect of criminal statutes (esp. those against rape), and you will also inflict further injury and humiliation upon someone you regard as a rape victim. Turning down the case, on the other hand, comes without significant moral costs. The accused has to look for another attorney, that's all.

A final remark. While, for the reasons given, I don't think much of the line of argument you press, I recognize that it is prominent in legal circles. I would explain this mainly by one factor: money. Defense lawyers want to earn money by achieving acquittals for persons they strongly believe to be guilty and they don't want to be thought unethical for doing this. So they work up a special professional ethic that justifies their conduct and even celebrates it as their moral duty. The mere fact that the members of a profession deem some conduct they engage in to be ethical does not make it so.


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