Philosopher Michael Huemer makes a claim that will surprise many attorneys and observers of the legal system: With some important exceptions, lawyers should not help a clearly guilty client go free or otherwise evade justice. This runs counter to the common notion that attorneys can or even should help their guilty clients go free (within the boundaries of the law). Huemer presented his case, based on his 2014 paper on the subject, at a September 12 meeting of Liberty on the Rocks in Westminster, Colorado.
Huemer’s basic argument is simple: Just as it is wrong for a murderer’s friend to help him “elude the police” (all direct quotes from Huemer come from the paper), so it is wrong for an attorney to knowingly help the murderer go free. The same analysis applies to other violent criminals. Huemer considers various counter-arguments to his position and finds them wanting.
At least at first glance, Huemer’s position seems obviously right. Normally if a lawyer knows a client is guilty of a serious crime, it is wrong for the lawyer to seek an outcome in which the client goes unpunished.
Some important caveats are in order. I’ll list four in no particular order:
1. Huemer carefully distinguished serious rights-violating crimes from actions that, while legally considered crimes, violate no one’s rights (such as drug use). In the latter sort of cases, Huemer said, lawyers morally may try to help their clients go free. (Huemer’s paper on jury nullification bears on this matter.)
2. Huemer pointed out that an attorney would have a responsibility to disclose his practices—his refusal to help guilty clients evade justice—to potential clients.
3. Huemer is not suggesting that lawyers be legally “censured for defending the obviously guilty.” He is talking only about what attorneys, individually, should choose to do.
4. Huemer said that a lawyer rightly tries to keep a guilty client from being punished too severely for the crime. Huemer said that the injustice of overpunishment potentially can outweigh the injustice of underpunishment. He writes, “In some cases, where the expected punishment for a crime is excessive, it may be less unjust for the defendant to be acquitted than for the defendant to be convicted, even though the defendant is guilty.”
Although I think Huemer essentially is on the right track, I worry that he has not adequately considered some relevant issues.
For one, I think Huemer may overestimate the frequency with which lawyers know whether their clients are guilty. As one defense lawyer present at the talk said, “When someone walks into my office admitting guilt, I’ll let you know.”
Consider just two common examples. Allegations of assault often involve claims of self-defense, where the evidence often comes down to conflicting testimony. Allegations of rape, particularly involving people of previous acquaintance, often involve claims of consent (explicit or otherwise); again, evidence often comes down to conflicting testimony.
Given the biases often present in the accused (and even in the accusers), and given the well-known tricks that memory can play, I think defense attorneys probably often are genuinely uncertain about the guilt of their clients. (By often I do not mean usually; the high percentage of plea bargains may indicate that lawyers usually think their clients are guilty.)
Thinking about the talk afterward, I worried that Huemer might in effect be reducing the criminal legal standard from “beyond a reasonable doubt” to the preponderance of the evidence. But he accounts for this in the paper: “[C]onviction of the innocent is much more unjust than acquittal of the guilty. Because of this, it is ethically justifiable to attempt to secure acquittal for such a defendant [who is 75% likely to be guilty]. This point applies as long as the lawyer has reasonable doubts as to the guilt of his client.”
So I take it that Huemer’s full stance can be summarized: “If a lawyer knows with a high degree of certainty that someone is guilty of a serious crime, then it is wrong for the lawyer to try to free the person from punishment, unless the only alternative is severe overpunishment.”
During the question period of the talk, I described a hypothetical case that I’m not sure Huemer has adequately addressed. Let’s say a lawyer knows that a person accused of murder is guilty, but to ensure a conviction the police planted evidence (say, the victim’s blood in the car of the accused).
To me, it is plausible that the lawyer should seek an acquittal, as a way to demonstrate to the police and the prosecution that tampering with evidence will not be tolerated. Maintaining the integrity of the legal system as a whole is more important than the outcome of a given case.
Huemer sensibly replied that the best outcome would be for the lawyer to ensure a conviction both of the accused criminal and of the corrupt police. The problem is that police abuse often goes unpunished.
One wrinkle here is that different criminals have different chances of reoffending. A serial killer has demonstrated a propensity to reoffend, but some other sorts of criminals are unlikely to commit another crime. So how does a conscientious defense attorney weigh such things as chances of reoffense, potential for future police and prosecutorial corruption, and so on? I’m not sure.
Besides such egregious abuses as planting evidence, police and prosecutors can also fail to follow proper procedure. For example, police might obtain evidence from someone’s house without a proper warrant. In such cases, surely defense attorneys properly have that evidence excluded in court. Again, a defense attorney should not reward government agents for violating people’s rights or duly established legal procedure. Importantly, Huemer is concerned with “unjust advocacy” in his paper; to me, acting to ensure the integrity of the legal system is just advocacy. I’m not quite sure how Huemer would address this point.*
Yet another problem involves public defenders. Whether there should even be public defenders is a complex matter. So long as there are, I’m not sure that the government entity paying for their services could justly allow the sort of practice that Huemer outlines or that public defenders could justly act that way. (Practically speaking, this may not matter much; my impression is that the problem with public defenders is that they radically underrepresent the accused, not represent them too enthusiastically.)
Incidentally, it occurs to me that a possible alternative to government hiring public defenders is for government to provide poor people accused of crimes with legal vouchers. Then I see no problem with attorneys who accept such vouchers acting in the way Huemer describes.
I’ll leave it to interested readers to explore the details of Huemer’s case more carefully. His basic position seems pretty obvious to me, so I don’t see much need in further banging my head against the usual rebuttals.
I’ll close with a point about economics. During his talk, Huemer worried that ethical lawyers would suffer financially as many accused parties sought out the services of less scrupulous attorneys.
But, I countered (after the talk), an attorney who acted the way that Huemer outlined might do very well financially. If I were wrongly accused of a crime, that is precisely the sort of attorney I would seek out. Such an attorney likely would develop a reputation among prosecutors as a straight shooter, so a prosecutor might be more open to reevaluating criminal charges for that lawyer’s clients. I think a lot of guilty parties would seek out such an attorney, too, out of concern with overpunishment.
I hope attorneys on both sides of the courtroom carefully consider Huemer’s case. Otherwise, they may find that, in playing devil’s advocate, they have helped a devil kill or maim again.
* This paragraph was added on September 15. In addition, the word “why” was changed to “when” in the headline, and the text “With some important exceptions” was added to the first paragraph.
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