Need-Blind Justice

FIFTY years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.

This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money. 

The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States. 

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What motivates a lawyer to defend a Tsarnaev, a Castro or a Zimmerman?

The trauma nurses who took care of Boston bombing suspect Dzhokhar Tsarnaev after his arrest have a straightforward explanation. “I don’t get to pick and choose my patients,” one told the Boston Globe.

The three public defenders assigned to Tsarnaev would have been similarly constrained. But what about the two prominent defense lawyers who have offered their services? Why choose to represent a man accused of turning the Boston Marathon finish line into a war zone?

Likewise, how can the lawyers representing Cleveland’s Ariel Castro fight for a man who pleaded guilty on Friday to 937 counts related to the kidnapping, imprisonment and rape of three women? And what about the attorneys for the recently acquitted but still controversial George Zimmerman? Do they really believe he is completely innocent of any wrongdoing in shooting an unarmed teen?

I have been a criminal defense lawyer for more than 30 years, first as a public defender and now as a law professor running a criminal defense clinic. My clients have included a young man who gunned down his neighbor in front of her 5-year-old daughter while trying to steal her car, a man who beat a young woman to death for failing to alert drug associates that police were coming and a woman who smothered her baby for no apparent reason. These are the kinds of cases that prompt people to ask: “How can you represent those people?” All criminal defense lawyers are asked this; it’s such a part of the criminal defense experience that it’s simply known as “the question.”

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All power to the people

And speaking of lost causes… there’s a fascinating new documentary making the rounds that you might want to keep an eye out for. William Kunstler: Defending the Universe is a sometimes stirring, sometimes confounding but ultimately moving portrait of the iconoclastic and controversial defense lawyer who was sort of the Zelig of the radical Left throughout most of the 1970s. Somehow, he became THE key legal champion for the Chicago 7, The Black Panther Party, anti-war activist Father Daniel Berrigan, the American Indian Movement and the ill-fated inmates who initiated the Attica prison riots.

However, beginning sometime in the 1980s (for reasons known only to himself, or perhaps just merely in keeping with the inherently contrarian nature of a defense lawyer) he slowly but surely turned to The Dark Side (at least in the opinion, and to the chagrin, of many of his professional cohorts and former “co-conspirators”). He started to take on high-profile cases involving clients who were, well, decidedly less sexy to the dedicated followers of fashionable radical chic; terrorists (including the chief planner of the first World Trade Center attack and the man accused of murdering Rabbi Kahane), mobsters (John Gotti and other Gambino family associates), notorious murderers (L.I. Railroad killer Colin Ferguson) and rapists (the Central Park jogger assault case)-to name a couple.

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You'll have to scroll down a bit to get to the Kunstler article.... Tom