The Best Defense

Prosecutors are from Neptune, defense attorneys are from Pluto.

In Virginia’s neck-and-neck race for governor—which culminates next week—the Republican candidate, Jerry Kilgore, has attacked the Democratic candidate, Tim Kaine, for opposing the death penalty and representing death-row prisoners. Virginia ranks second only to Texas in its pace of executions, and polls show that Americans favor capital punishment for murder. Kilgore, a solid conservative lawyer, former prosecutor, and state attorney general, would seem to have found a good niche issue to give bite to his otherwise stock “my opponent is a liberal soft on crime” mantra. So, in a Kilgore television spot, a victims-rights advocate, Stanley Rosenbluth, emotionally lambastes Kaine for assisting in the death-row appeals of the man who murdered Rosenbluth’s son—although the killer was eventually executed for his crime. The Kilgore ad claims that Kaine would have spared even Hitler from the death penalty.

More interesting than either Hitler or Kilgore’s attack ads, however, is what this controversy illuminates about American attitudes toward criminal prosecutors and defense lawyers. Are—as these ads suggest—prosecutors and defense attorneys really from Venus and Mars? I am beginning to believe they are.

As a law school professor and dean, I have taught and befriended many students who have gone on to successful and satisfying careers as prosecutors and defense attorneys, and while stereotypes are always perilous, I have come to the conclusion that on the whole prosecutors and defense lawyers are so different, they almost don’t recognize the moral imperatives of the other. It starts early, and I’d hazard that it’s in the genes. As students, they dream different dreams. Students who dream of being prosecutors have little in common with those fantasizing about being defense lawyers. Some fundamental yin/yang, left-brain/right-brain, red-state/blue-state genetic coding is at work. These students are united by passion but divided by where their passions have taken them.

Those with the prosecution genes think the system is broken because too many of the guilty are acquitted; those with the defense genes think the system is broken because too many of the innocent are convicted. I have noticed that the students with the prosecutor genes tend to be the students who most abhor chaos. A fundamental premise of criminal law is that punishment exists to deter crime and that, for the deterrent effect to operate, the would-be criminal must believe that there is a risk he or she will be caught, and if caught, prosecuted, and if prosecuted, convicted. As the Bob Dylan line goes, “If you can’t do the time don’t do the crime.” For the students with the prosecutor genes—the future Jerry Kilgores—this becomes more than polite sentiment, it becomes deep dogma.

I find the psychology of students with the defense genes more complex. Vigorous defense lawyers also deter crime—the crime of corrupt prosecution. But truly corrupt prosecutions are rare, and defense lawyers, who generally toil amid a culture of scorn, are often perceived as amoral gunslingers who thrive on the thrill of beating the system and defending the guilty. I have found this caricature entirely inaccurate.

So, let us tackle the harder questions put by the Kilgore attack on Tim Kaine: Is there really a vast difference between the two candidates because one is willing to defend killers? Should we think less of a candidate for governor because that candidate, as a lawyer, voluntarily undertook to prevent a convicted murderer’s execution? For reasons that go to the heart of our constitutional democracy, I believe the principled answer is “no.” Vote against a candidate because of the candidate’s position on the death penalty if you wish. But do not vote against a candidate merely because, as a lawyer, he or she volunteered to defend persons accused or convicted of heinous crimes.

To accept this proposition one must first understand the ethics of defense advocacy in a system of constitutional rights. Personal ethics and professional ethics are not always in parallel. My personal ethics derive from many influences in my life, including values I have absorbed through religion, family, community, friendships, and personal reflection. When I became a lawyer I volunteered for a profession I knew would from time to time demand, as an essential element of the profession’s ethical norms, that I subordinate my private ethical or moral code to the larger code of the profession. To mock or deride this as immoral or amoral is to misunderstand entirely the role of lawyers in constitutional democracies. Anyone who thinks that lawyers routinely act as immoral or amoral agents does not know the profession. I encounter lawyers in all strata of the bar who act as admirable moral agents every day of their professional lives. They do this not by holding themselves out as holier than thou self-appointed ethical elites, but as common-sense, hardworking advocates who owe their first and primary allegiance to their clients.

In legal lore, perhaps the most famous statement of this loyalty was that of an English lawyer, Lord Brougham, in his 19th-century defense of Queen Caroline. Caroline’s husband, King George IV, was trying to divorce her by charging her with adultery. Lord Brougham was one tough divorce lawyer, and he made it clear that in defending the queen he planned to prove that the king was a philanderer and had even gone so far as to marry a Catholic secretly—a fact that would have jeopardized his entitlement to the throne. Brougham was roundly criticized for these hardball tactics. But in a famous speech to the House of Lords, Brougham stated that:

an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons. And in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.

In America, this zealotry has been absorbed into the very fabric of our constitutional law. And Justice Byron White (no knee-jerk liberal), concurring in part in United States v. Wade (1967), said this about the role of the defense lawyer:

But defense counsel has no comparable obligation to ascertain or present the truth. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. More often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

To paraphrase White, then, defense lawyers appear to work against the system. But in doing so they also make the system work.

It is not the job of a defense lawyer to be popular. As it happens, of course, being popular is the job of a candidate for governor—or popular enough, at least, to get elected. As a lawyer and legal educator I hope that when voters form their judgments on citizens Kilgore and Kaine they think beyond the Hitler card. This is a bipartisan hope—one that cuts both ways. The jobs of criminal prosecutor and criminal defense lawyer are equally noble and altruistic. Vote as you will on judgments of content and character. But do not hold it for or against either lawyer-candidate that they chose one side of the courtroom over the other. After all, it was in the genes.