More on Defending The Guilty

Anonymous Law Student follows up on my post on how to answer the oft-asked question, "How can you represent someone when you know he's guilty?" complete with a funny video!

One of the interesting things that comes out of ALS's post is:

It seems to me that there was a consensus that asking a person, "how can you defend someone you *know* is guilty" at a social gathering is somewhat crass. I think it's rude to ask a person to justify their job, especially at a casual get together.

So, is it a rude question? Is it crass for a person I meet at a cocktail party to ask, "How can you represent someone when you know he's guilty?"

I'll admit, when I hear the question, I feel a bit defensive. Maybe wrongly so, I'm not sure.

I haven't had many other jobs, but I waitressed in high school, I don't remember a lot of people worrying about the moral quandaries involved - it's not as a lot of people said to me, "How can you serve fatty food to people who are already obese?" Maybe waiting tables isn't a good example, but it's one job that I was never asked to defend.

I wonder if you could come up with a moral quandary for every job if you tried hard enough. In college I worked at a computer help desk. "How do you repair people's computers when they messed them up themselves, and you know they're just going to do it again?" Doesn't work quite as well.

But, maybe it's not meant to be rude or crass. Maybe I read too much into it. Maybe it's more like someone saying "Wow, a bus driver? How do you drive all around the city and pick those people up and drop them off?" Maybe they're not questioning my morals so much as expressing their awe...

Yeah, that's it, they're expressing their awe. Maybe the best response is, "Yeah, I know, it's hard, but I am pretty amazing."

Or, I also liked A Voice of Sanity's response:
You could always screw with their mind. Tell them, "The same way a funeral director can bury someone they know is dead".

Not that my client's prospects are as dim as the funeral director's, of course.

But, back to *the* question. What do you think... Is it a rude question? Are people just curious, and possibly well-meaning? Am I over-sensitive or too defensive? Those of you with other occupations, do you get any similar questions?


  1. Like most things, meaning depends on context. It could be rude or it could be conversational -- tone of voice, body language, how well you know the person would come into play.

    I (a teacher) am sometimes how I can put up with kids, but that's obviously a different slant.

    When I was in the military I was referred to as a "baby killer" sometimes. Which I think falls into the "rude" category.

  2. I think it's like how everyone wants to know, when you are a psychologist, "how can you live with all of everyone else's problems? Doesn't it bother you to hear all of that unhappiness?" People just want to be inside what it's like to do a demanding job, and they are digging for the most demanding aspect of it to examine.

    But maybe I'm too nice, here :P


  3. To find rudeness there, you have to assume criticism. The question may just reveal the questioner's lack of understanding of how the criminal justice system works. I am a criminal research attorney working for a trial court. Non-lawyers are constantly asking me some version of: "So then you must work for the DA, right?"

    I think if I were in your shoes, I would assume ignorance not criticism and explain how the system works, including the importance of getting the government to prove their case (none of us wants innocent people to be punished) and the fact that, while someone may be guilty of *something*, it might not be what the government has charged them with.

    If they still come back with a rude response, they're not worth the emotional investment. Brush it off.

  4. I agree with the comments that say people are genuinely curious and want to hear what you have to say. And if they are being rude, at least pretend that they're just interested.

    Personally, I don't think I'd ask that to someone I just met, because it does sound like implied criticism even if you don't mean it that way. But if I knew them a little better, I might ask (but more like, "Is it harder to defend people you think are guilty?")

  5. In my experience, if the question is rude, it is immediately apparent from the tone of the questioner. I can always tell the genuinely-interested questioner from the righteously-indignant-that-anyone-would-dare-defend-those-scum questioner. I do my best to answer the first type as forthrightly and thoughtfully as I can. I bristle at the second and don't waste much energy on the response as I think they're already inclined to hate whatever response I give.

  6. I think its rude to talk about anyone's job (especially in a possibly negative manner) at a cocktail party, and more's so boring! I would totally invalidate the question all together by telling them "shop talk is such a many gold medals do you think Michael Phelps is going to win?". If you are as fun as you write, you surely have something more time-worthy than work to talk about. Especially over cocktails!

  7. It doesn't really make me mad when I'm asked these questions, because I figure they are either honestly wondering or misguided.

    I say that as a defense attorney I have one duty, to zealously defend the rights and interests of my client. So I know he's guilty? So what?

    Would we want priests to have to reveal that a confessor said he was going to murder someone? Morally that seems like the good thing. But a priest has a higher duty to bring sinners to salvation. If the confessional isn't safe they are not performing their duty.

    My goal is to protect my client, and hopefully society, from prosecution from a state to make sure that no innocent person is ever found guilty. Sometimes this means protecting someone I know is guilty.

    And if I couldn't handle that duty then I shouldn't be a criminal defense attorney.

  8. I think Gerard got it right with context. If instead they asked "What's it like to defend someone you know is guilty?" that would demonstrate true curiosity without the implication of judgment.

    But criminal defense lawyers are definitely special. We seem to have an inflated sense of justice in the US. Half of the movies made end in the bad guy getting his comeuppance. We want to see bad guys go down and the just prevail. When the bad guy goes free, the lawyer becomes the bad guy. When any other profession helps people who make stupid mistakes, they're heroes helping the less fortunate. When lawyers do it, they're subverting justice at some cosmic level.

    I wouldn't call that fair, but lawyers have to be used to getting no benefit of the doubt by now.

  9. I have never had someone ask me that question where the context (i.e., facial/body language + following conversation) hasn't made it clear that they were judging the morality of defending criminals. Criminal defense is the plumbing/septic repair of the legal profession. People don't want to shake your hand when they meet you, but they'll invite you into their home at all hours when they need your services.

  10. I'm going to go against the flow here and say it's absolutely crass in all situations, no matter what. I practiced personal injury law, and at least one out of three non-lawyers cringed when I told them what I did. How insulting. If you don't ask for their opinion, they have no right to give it to you.

  11. Hopefully they just are curious or impressed and convey it poorly. Of course at least some of them are probably rude, like the ones that ask me "3 boys, didn't you want a girl?" - in front of my children of course. Can they honestly not see how dumb that question is?

  12. I don't know that it's meant to be rude, but I can certainly understand being offended by the question. In some ways, I think it portrays a level of ignorance about what criminal law is all about (and definitely reveals no personal experience being int he defendant's chair).

    When I started out as a prosecutor, most non-lawyers had positive reactions to my job. The exception would be, understandably, people who had been charged with a crime or had friends who had been charged (to quote my brother-in-law, "Why do you want to work for the bad guys?"). The surprising reaction came from lawyers, who would frequently reply "You know, you can also get a lot of trial experience as a public defender." The implication was usually that being a PD would be a more acceptable job. I understand where that comes from, but it was always frustrating when they made assmuptions about why I chose the job.

    Bottom line...there are other ways to respond to someone's job without being insulting. I'd rather have the hypothetical "how could I get out of..." questions than someone make assmptions why I'm in my job. What kind of follow-up questions would defense attorneys prefer?

  13. I heard the same thing when I did public defender work. I also heard it doing PI and Comp. It's just that most people just don't get it until they need the help.

  14. It's an . . . interesting question you ask. I don't think there really are many parallels in other fields. For most, I suspect that the question is really a shorthand for "How can you do a job, knowing that "success" will actively harm the individual members of society?" There are two major flaws I see in this question. The first is whether or not lack of a conviction is success - if that's not your measuring stick, you're effectively speaking different languages (sort of like a discussion about football between a Brit and an American). The other is that most people won't draw a distinction between the individual and society, and see conviction despite procedural flaws as a good thing. To many, the "ideal" outcome would be for the PD to break whatever rules are necessary to compensate for any errors or failures which occured previously during the entire process.

    More simply: the discharge of your duty will cause an injustice to occur - if other individuals outside of your control fail to perform their job correctly. That the failure to discharge your duty also results in an injustice is not relevant to many people, and thus they ask the question.

    The only example I can think of which comes close to this dynamic is that of an executioner, faced with a known innocent prisoner. His job is to kill the condemned, who is however known through some (highly unusual, I expect) set of circumstances, to be innocent. Even here, of course, the situation is not quite the same: the Governor or President (as appropriate) can bypass the process and prevent the execution. There are probably other similar situations, but I've not been able to think of any.

    (or, maybe I'm just in a bad mood since it's Monday morning, and work doesn't look half so enjoyable as more sleep.)

  15. I think it would depend upon the person asking the question, and the way they were asking it.

    For some people, I think it really IS a matter of curiosity - are they inquiring, "How do you deal with this aspect of your job? Isn't it difficult?" as opposed to "Don't you feel dirty and wrong and bad doing that job?"

    Because I specialize in property law, the only criminal defense work I do is in representing people who've been charged with owning nuisance real estate. (No one has ever asked me if I feel bad defending people who have failed to paint their front porch or re-shingle their roof. Go figure.)

    But, I do think it's important for non-lawyers to hear that it is a basic and fundamental tenet of our legal system that every person accused of a (serious) crime has the right to legal counsel, has the right to have someone to advocate for them. I think people need to hear that the role of defense counsel is as crucial to Justice as the role of the prosecutor, the judge and jury. Everyone has their role to play.

    So, I guess, even if the question seems rude, I think it's important for you (and for all attorneys, really) to answer it.

  16. My point would be that I do not know if my client is guilty. I may know that he did it, but he is only guilty if he admits he is before a judge or is found guilty by a judge or a jury.

    In other words, patronize the ignorant with legalistic BS. How dare they banter about highly technical terms, i.e., guilty, without knowing what they meant.

  17. Interesting question. I think there's an episode of the Cosby Show where one of the girls' idiot boyfriends asks a question like that to Clair.

    Her response is pretty much what others have already commented here - that it's not her job to determine whether the person is guilty, but to defend the person.

    Anyway, how arrogant are these people who ask this question, who presume that any one person can *know* the defendant's guilt without all of the facts?

  18. If a relative stranger, upon learning your job, asks you "How can you defend people you know are guilty?" there are a number of implied assumptions in the question that do indeed make it a rude question to ask. It assumes you know your clients are guilty. It implies a negative judgment about people in the criminal justice system. And it is a personal criticism on you and your morals. Judgments like that are better left to a political debate than a cocktail party. If the question is phrased differently, it may not necessarily be rude.
    But I think the perfect way to counter rudeness is to act like the person is not being rude - therefore, I love your response.

  19. Each to his or her own; I think it's an honest, fair, reasonable question, but it's often asked from a very different frame of reference, as though what really excites a criminal defense attorney is the intrinsic thrill running up and down his/her leg when getting a horrible person who has done something dreadful to walk.

    Similarly, a friend who is a gynecologist . . .

    . . . well, you see where I'm going with this, and I'll stop now, and just suggest, pace Tom Lehrer that it's not analogous to a young necrophiliac achieving his boyhood ambition of becoming coroner.

    (That said, a close friend who does criminal defense does, from time to time, brag about one instance of getting a client off who had -- no ifs, ands, nor buts -- broken a very reasonable law multiple times. Which is fine.)