Question Do attorneys who successfully enable guilty clients to evade conviction (or who manage to convict innocent defendants) have any reason to feel that they are acting immorally? Or are they beyond reproach so long as they themselves do nothing illegal or procedurally inappropriate in the course of their work?

Accepted:
March 17, 2011

Comments

I read your queston as envisaging that the attorneys in question not merely contribute to a miscarriage of justice but do so knowingly -- or at least have strong reason to believe that the outcome they are achieving is the wrong outcome.

I also read you as stipulating that the cases you have in mind happen within a largely just legal system. Within a seriously unjust legal system, an attorney who gets a guilty client (who really did make a joke about the dictator) acquitted has done a morally good deed, and similarly the attorney who gets one of the regime's torturers convicted for a crime he didn't commit.

To be reasonably just, a criminal justice system must not merely punish the kinds of conduct that ought to be punished and permit the kinds of conduct that ought to be permitted. It must also have rules and procedures that are reasonably reliable in ensuring that guilty people get punished and especially that innocent people are acquitted. It is not consistent with such a system that prosecutors pursue and achieve convictions of people whom they know to be innocent. Such behavior either violates the rules of the system (which proscribes such prosecutorial misconduct) or else constitutes participation in an unjust legal system (which permits or encourages prosecutors to go after innocent people).

It could be argued that this sort of reasoning does not apply in the case of defense attorneys: that a criminal justice system can be just even while it encourages defense attorneys to try to get acquittals even for clients they know (or have very strong reason to believe) to be guilty. In view of the enormous damage done by repeat offenders who have been wrongly acquitted earlier, I find this blanket permission hard to accept in the case of serious crimes. Here, I think the analogous argument goes through: a defense attorney who achieves the acquittal of a defendant whom he knows to be guilty of a serious crime is either violating the rules of the system or else participating in a legal system that is unjust insofar as it permits or encourages such conduct. Such a defense attorney should decline the case or resign from it. If such a defense attorney is convinced that her client is a rapist and then continues to defend him vigorously and achieves his acquittal, then she bears some moral responsibility for crimes her client will commit in the future even if she has done nothing illegal or procedurally inappropriate.