Debate Magazine

Is a Criminal Defence Attorney a Bad Thing?

Posted on the 23 April 2014 by Doggone
I have been asked to write about why criminal defence attorneys are important to the US legal system because it seems that the right wing is unaware of this fact.  This is because it has been brought to my attention that Debo Adegbile was adamantly and vocally opposed by conservatives due to his participation in an appeal filed on behalf of Mumia Abu-Jamal.
While many people hide behind the US Constitution, few seem to have any actual knowledge of what it says, or even understanding of what it says.  If they did, they would know that The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.
There are actually FIVE rights that this covers:
  • the right to counsel of choice
  • the right to appointed counsel
  • the right to conflict-free counsel
  • the effective assistance of counsel
  • and the right to represent oneself
I'm not going to address those specific aspects of the right to counsel, but I will say that the Constitutional right is limited to CRIMINAL cases.
The right to counsel is generally regarded as an important part of the right to a fair trial and legal due process. Thus, a criminal defence attorney is a vital part of the criminal justice system if one wants to have one which is seen as fair and just.
It was a part of Magna Carta which established the principle of due process in clause 29:
NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
While not specifically quoted in the US Constitution (it is in some state Constitutions: in particular Florida's), it is embodied in the Fifth Amendment: "No person shall be deprived of life, liberty or property without due process of law."
I would also add that the US Constitution spends a fair amount of space on criminal procedure with the Fourth, Fifth, and Sixth Amendments, among other articles in that document, addressing common issues in criminal justice matters. Obviously, the founders wanted a Federal Criminal Justice system that was seen as fair, yet the right to counsel is far from being strongly implemented in practice.
A defendant's need for a lawyer is nowhere better stated than in the words of Justice Sutherland in Powell v. Alabama, 287 U.S. 45 (1932):
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
John Adams, took the task of defending the British Soldiers accused of carrying out what would be known as the Boston Massacre. Adams took the case to ensure that justice was served. Adams, an outspoken critic of the British occupation, recognized the importance of a fair trial for the accused and agreed to represent them. Adams later wrote that he risked infamy and even death, and incurred much popular suspicion and prejudice, for the sense of duty he felt to offer the British soldiers an adequate defence.
Adams wrote in his diary:
"The part I took in defense of captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country. Judgment of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or witches, anciently.”
John Adams recognised that even unpopular client deserve a defence if one wants to have a legal system which is fair.  We may not like a defendant, but they are still entitled to the best defence legally possible.  The fact that Debo Adegbile represented an unpopular client is not something which should be discouraged or disparaged.  In fact, it is something which is vitally important if people want a functional legal system.
The right to counsel is an important part of the US concept of due process and legal fairness.  I would question those who would condemn someone for having played the part of defence counsel as to what sort of legal system would they like to see implemented?
I know one thing, that the people who wrote the US Constitution would disagree with them if they want to demonise the criminal defence bar: especially John Adams.
See also:
History of the Right to Counsel
Findlaw: Right to Counsel
Right to Counsel Clause

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