A Defendant Even Ron Kuby Wouldn't Defend

The Washington Post has a story today about ultra-lefty lawyer Lynne Stewart, who is about to go on trial for allegedly aiding the "blind sheik," Omar Abdel Rahman, (he's currently serving "a life sentence for conspiring to blow up the United Nations, two Hudson River tunnels and Manhattan's FBI building").

How bad is Sheik Omar? Even Ron Kuby, the longtime partner of the late radical attorney William Kunstler, wouldn't touch him with a 10-ft. pole, telling the Post,

I love Lynne, but no one in the world could fairly posit the sheik as a progressive or liberal on any issue….In the aftermath of September 11th, I could no longer put myself in the service of those who are trying to create a world in which I would be put up against a wall and shot, and my daughter and wife would be put in burqahs."

Whole Post story here. Stewart maintains her innocence and the potentially chilling implications of her prosecution are the subject of this June feature story in Reason.

Comments

[fyodor]

"In the aftermath of September 11th, I could no longer put myself in the service of those who are trying to create a world in which I would be put up against a wall and shot, and my daughter and wife would be put in burqahs."

How about before September 11th? Kinda reminds me of the shift in leftist opinion on China after Tiannamen Square.

[joe]

Should we infer from this that he DID support the politics of the other people he's defended?

"no one in the world could fairly posit the sheik as a progressive or liberal on any issue..." Oh, so I guess he isn't entitled to a zealous defense, eh counsellor?

Lawyers take clients they don't like all the time. Ron Kuby is spitting in the face of those attornies who did their duty at the defendants' table in Nuremberg.

[Mr. Nice Guy]

That lawyer broad is uglier then Courtney Love passed out in a jail cell on a Saturday morning. It's probably a good thing that that santa-claus hat wearing sheik was blind.

"The indictment alleges that while visiting her client in prison, Stewart spoke gibberish in English as a cover while the sheik gave instructions in Arabic to a follower posing as a translator."

A lawyer speaking gibberish..? It must've taken a real Sherlock Holmes to crack that ruse.

[Fred Gillette]

That's right. Do not enlarge the photo. umhp, bleaaagh!

[Stephen Fetchet]

Come on, guys, Ol' Lynne is a true civil libertarian. As she explained in a Law.com article this morning, "there's nothing I'd rather be doing, than fighting the government..." Surely, Reasonites and Reasonoids can rally behind that.

[Phil]

Oh, so I guess he isn't entitled to a zealous defense, eh counsellor?

I smell straw burning. Kuby didn't say nobody should defend him. He said he wouldn't defend him. Lawyers are under no moral, legal or ethical obligation to take every case that comes through their doors.

[joe]

Maybe you're right, Phil, but I have no respect for people who tell others to do that which they themselves would never do. That is exactly the opposite of leadership and responsibility.

[Phil]

[Insert snarky comment about John Kerry's wife's SUV here.]

Seriously, though, the logical implication of your thought is that every lawyer take on everyone that requests his or her services. Do you honestly believe that? What do you consider legitimate grounds for an attorney to reject a client?

What's more, if an attorney's personal feelings about a person's politics, guilt, or what have you would prevent him from offering the best possible defense, he's practically morally obligated not to take the case.

[Dan]

Lawyers take clients they don't like all the time. Ron Kuby is spitting in the face of those attornies who did their duty at the defendants' table in Nuremberg.

Good; they deserved to have their faces spat in.

[thoreau]

Joe-

I agree with you that justice is always better-served if the defendant gets a vigorous defense. Even if the defendant is blatantly guilty, a vigorous defense will ensure that the government doesn't get lazy or sloppy, and the record of his crimes will be all the more trustworthy because it will have withstood the scrutiny of a vigorous defense. And the innocent are always safer when a vigorous defense is ensured to every defendant.

Still, with all of those nice statements out of the way, I can imagine that defending a blatantly guilty and despicable person must be a difficult task. So I see nothing inconsistent about a person who says "Look, I've defended some horrible people to ensure the integrity of the process and whatnot, but I've reached my limit and I need to step aside and hope somebody else will take a turn at it."

[EcoDude]

"Come on, guys, Ol' Lynne is a true civil libertarian. As she explained in a Law.com article this morning, 'there's nothing I'd rather be doing, than fighting the government...' Surely, Reasonites and Reasonoids can rally behind that."

Even if she's fighting the government for increased regulation, a right to welfare, etc...?

[thoreau]

Dan-

Like I just said in my previous post, the point of defending the blatantly guilty is to ensure the integrity of the process. Those thugs at Nuremberg were given a vigorous defense so that nobody could ever argue that the crimes never happened. We can all point to Nuremberg and say that the evidence withstood a vigorous defense and so it is all the more reliable.

Sure, you might argue that the evidence was so strong that it didn't need the extra procedural safeguards. The goal, however, was not merely to ensure that the reliability of the evidence met a threshold, the goal was to maximize the reliability of the evidence by every means possible. The world owed it to the victims to ensure that the evidence was vindicated for history by every means available, including vindication after a vigorous cross-examination.

[joe]

"Seriously, though, the logical implication of your thought is that every lawyer take on everyone that requests his or her services. Do you honestly believe that? What do you consider legitimate grounds for an attorney to reject a client?"

Criminal defense attornies, if they are being true to their duty as officers of the court, should not be denying defendants' their services based on personal feelings. You and thoreau raise the issue of attornies who cannot trust themselves to do their jobs, and want to remove themselves for the sake of the client. Well, being a defense attorney is hard. Get used to it. And if they cannot live up to the standards...well, I'm a forgiving type of guy, but they should not pretend their lack of fortitude, their evasion of the responsibility they willingly undertook when they took their oath at the bar, is anything but the failing it is.

Dan, in civilized countries that respect the rule of law, we don't punish criminals unless they've been proven guilty at a trial - a real trial, not a Stalinist show trial. That means having a real attorney, who fulfils his role in the adversarial system. Without the defense attornies at Nuremberg, we would not have been able to punish the guilty parties and continue to exist as a civilized republic under the rule of law - both of which were absolute necessities.

[fyodor]

I agree with what Thoreau is saying, and also to a degree with what Joe is saying. The integrity does depend on lawyers being willing to give scumbags good a good defense. But I think the issue here is that oftentimes lawyers will make a point of representing sympathetic clients (maybe at a discount?), which is why left-wing lawyers will often be found representing war protesters and civil rights activists and the like rather than corporate scum. 🙂 Kuby seems to be implying that this is what Stewart was and is doing but that she was miguided to think of the sheik and his ilk in such a light and that 9/11 made him realize that too. Any dissension to that? Thus my reaction of, well about time Kuby came to see it that way!

[thoreau]

Joe-

I'm no defense attorney, but anybody who follows the news knows that there's a variety of defendants out there. Some are the heinous guys who need a defense for the sake of the Constitution. Some are guilty of minor offenses, and just need a lawyer to shepherd them through the process. Some people are innocent. Some are ambiguous cases where guilt or innocence is not clear and a defense lawyer is desperately needed to point out that there is reasonable doubt.

I see nothing wrong with a defense lawyer saying "Look, I've taken my share of hard cases for the sake of the Constitution, now I need a breather while somebody else takes a turn at it."

It's easy to say that his weakness is reason to bow out of the profession completely. But if we evict from the profession anybody who has pangs of conscience over defending thugs for the sake of the Constitution, then the defense bar will go from 99% crooks to 100% crooks 🙂

[Dan]

Like I just said in my previous post, the point of defending the blatantly guilty is to ensure the integrity of the process. Those thugs at Nuremberg were given a vigorous defense so that nobody could ever argue that the crimes never happened.

Oh, I see. That explains why there are no Holocaust deniers in the world today -- because the architects of the Final Solution got a vigorous defense.

Hey, wait a minute -- there are *millions* of Holocaust deniers in the world today! And, in fact, they point to "evidence" offered up in the Nuremberg defenses to "prove" the Holocaust didn't happen. So, so much for that theory.

The "integrity of the process" line is just horseshit lawyers feed to gullible people. The simple fact of the matter is that lawyers defend people they believe to be guilty either because they don't have a problem with the crime in question or because they expect to cash in.

It's very simple. If the defendant is innocent, he should be able to find a lawyer that he can convince of his innocence (and if he can't, he's not going to be able to convince a jury either, so the point is moot). So innocent men (and guilty men who can plausibly appear innocent) should be able to find lawyers who believe their clients are innocent. So a lawyer can only be forced to defend a client he believes to be guilty -- you know, to "insure the integrity of the process" and the rest of that crap -- if that client has been completely unable to convince any competent attorney that there is reasonable doubt about his guilt.

Well, you know what? If you can't even convince the defense attorneys of a city that you're an innocent man, the odds that you actually *are* innocent are so remote as to not be worth thinking about. Making sure that you have a sufficiently-talented and sufficiently-amoral defense attorney isn't high on my list of priorities.

[thoreau]

Dan-

What is your point? You just don't like it that even guilty people can hire a lawyer?

[Phil]

Joe --

So your answer to my question, because I want to be sure I'm getting it right, is that there are no legitimate grounds for an attorney to reject taking on a criminal defense case?

[Steve in CO]

WTF? Isn't this Reason? You are all assuming that this lawyer is already guilty? Oh, wait, my bad, ya'll aren't talking about that...

I am more concerned with the AG stating that he ain't gonna cotton to some upity lawyer subvertin the justus system ...

Seriously, to me it seems that this also serves to scare off lawyers in the future from defending people accused of terrorism. I mean will a defense attorney risk getting prosecuted by simply defending an accused terrorist? Are we all now willing to say, "oh well, he must be guilty, or the government wouldn't have charged him with the crime." Really??? Again, WTF?

[Steve]

Joe,

You're wrong. A lawyer is not supposed to defend someone they know is guilty. And that's even by the accepted ethics of lawyers. I would also say that a lawyer has a moral duty not to defend someone they think is guilty, but that's just me.

[Mark Draughn]

Steve,

I believe lawyers are allowed to defend someone they know is guilty, they just can't offer a defense of actual innocence. In particular, they cannot allow the defendent to falsely claim innocence on the stand, nor can they claim it on their client's behalf.

However, it's not a free ride for the prosecutor: He still has the burden of proof. He still has to make the case to the jury, and the defendent's lawyer is certainly allowed to impeach witnesses and question the validity of evidence.

Also, just because the defense lawyer knows his client is guilty of a crime, doesn't mean he's guilty of the exact crime he's charged with. A lawyer might be convinced that his client pulled the trigger without being convinced that the shooting was premeditated.

[Dan]

What is your point? You just don't like it that even guilty people can hire a lawyer?

I think it's perfectly fine that guilty people can hire lawyers who know they're guilty. I just think it's laughable to pretend that the lawyers in question aren't morally contemptable, or that the lawyers are somehow performing a necessary and vital service by doing so. Nobody would be hurt if lawyers refused to defend people they knew were guilty -- well, nobody but the local BMW dealer, anyway.

Think of it from a free speech perspective. Should it be legal to publish holocaust-denial books? Certainly. Are the people who do it sick and evil human beings? Yes. Would anybody be in any way hurt if publishers voluntarily refused to do business with such people? No. Are publishers who *do* do business with such people performing a needed service? Hah! Hell no.

Lawyers have a right to behave in a legal but amoral manner, and I have a right not to respect them for it.

[Dan]

That means having a real attorney, who fulfils his role in the adversarial system

I think history is full of examples of what happens when people mindlessly fulfill their roles in the system without following any kind of moral guidance.

Knowingly defending a guilty person is every bit as bad as knowingly prosecuting an innocent one. The notion that the legal system cannot function correctly unless lawyers prosecute people they know are innocent, or defend people they know are guilty, is simply false. If lawyers refused to help people who were, to them, obviously guilty, fewer lawyers would be availble to help those who were obviously guilty and more lawyers would be available for those who were possibly or probably innocent. Similarly, if prosectutors refrained from mindlessly going after obviously innocent people, more resources would be available to go after the possibly or probably guilty ones. In NO WAY would ANY of this be bad, ot Stalin-esque, or any of the rest of that crap.

[Jack]

Dan wrote: "If lawyers refused to help people who were, to them, obviously guilty, fewer lawyers would be availble to help those who were obviously guilty and more lawyers would be available for those who were possibly or probably innocent."

Does your mommy type your posts for you Dan? I ask because this is the level of logic I expect from a first grader. As an attorney, I'll tell you there's no particular shortage of lawyers in the US. My firm recently opened a new associate position, did no advertising other than word of mouth, and got 12 applicants within a week. Also, as someone who does commercial litigation, I'm curious to know if you think attorneys shouldn't defend parties in civil trials that they "know" are guilty?

[brooklyn dave]

Oy Vey! I read the June feature story in reason and appreciate the broader implications of showing how the DOJ will go on the war path and impede defense attornies from zealously defending their clients. Personally, I think Lynne Stewart is a cross between Mama Cass and a kangaroo, but that's only my opinion. Even the article says that Stewart definitely overstepped the line. Yup, she does have a distorted view of things. I am glad the article chose to concentrate on broader issue than on Stewart herself. I heard that she is representing herself...true?

[joe]

"lawyers are free to reject clients for any reason they like."

"Free" in the sense of not being subject to punishment, yes. No one will jail you if you ignore your profession's principles.

But no one who actually understands and supports those principles would allow a defendant to be un-represented.

[Dan]

I'm curious to know if you think attorneys shouldn't defend parties in civil trials that they "know" are guilty?

Enough with the scare quotes around "know". I'm talking about people you know are guilty, not people you "know" are guilty.

Example: would you defend a man you'd seen murder somebody?

If "yes", you're an evil shitbag.

If "no", you're a hypocritical shitbag.

Either way, you're pathetic.

[Phil]

That depends -- who did he murder? Was it Dakota Fanning, or was it Fred Phelps?

[Lisa Simpson]

Hey, at least Mama Cass was pretty. (I won't pull that "pretty face" crap.)

[Mona]

joe errs in claiming: "'Free' in the sense of not being subject to punishment, yes. No one will jail you if you ignore your profession's principles."

Wrong. Nowhere in the Rules of Professional Conduct does it state that lawyers must take clients. Nowhere is the lawyer's right to refuse to provide his or labor circumscribed. (Except when a lawyer has already undertaken the representation; it can be tricky to get out of it once commenced.) No discipline is directed at a lawyer who excercises his or her prerogative to withold their labor at the outset. The professional principle you describe exists only in your mind.

Indeed, when some have proposed making the holding of a license to practice contingent upon taking a certain amount of pro bono work (but not directing that particular clients must be served gratis; merely that some quantum must be), the response has been that this would run afoul of the constitutional bar on involuntary servitude. I've not actually tracked that controversy-- has anyone here?

--Mona--

[Jack]

Dan wrote: "Enough with the scare quotes around "know". I'm talking about people you know are guilty, not people you "know" are guilty.

Example: would you defend a man you'd seen murder somebody?

If "yes", you're an evil shitbag.

If "no", you're a hypocritical shitbag."

I'll generously answer your question even though you've utterly evaded mine (which concerned civil trials), but excuse me while I spit the straw out of my mouth before answering. (What percentage of attorneys ever witness their client commit *any* sort of crime for Pete's sake?)

Assuming that: a) I did criminal defense work and b) that I considered myself skilled enough to handle a potential capital case, then yes, I'd represent someone even if I had seen them commit the killing (murder is a legal term thus, from a practice of law standpoint, nobody commits murder until a court determines they have committed murder). Just because I personally saw Person X shoot Person Y to death, doesn't mean Person X committed murder. There are issues such as:
intent
premeditation
self-defense
mental state of X (which can be separate from intent and premeditation in some cases, such as where the killer is operating under an insane delusion)

So there you go Dan, if believing that the well-affirmed Constitutional right to representation makes me an "evil shitbag" in your eyes then I'll wear that label proudly.

And, so, what is your answer on the civil trial question? (Not that I'll hold my breath waiting for a member of the Junior Jackboot Brigade to answer a straightforward, reasonable question. You guys always seem to mysteriously fall silent on those...)

[joe]

Phil, there are many legitimate grounds for a lawyer not to take a case. "This case is icky and hard, and I'll be sitting at the table with a Bad Guy" isn't among them.

Steve, you don't know much about the legal profession, do you? Lawyers are required to offer a zealous defense of clients, even if they're guilty. They cannot subborn perjury, but they can point out that the State has not met its burden.

Dan, every single person that the government wants to put in jail, or kill, is entitled to a defense. Every. Single. One. It is not morally contemptable to make sure this iron rule remains in place.

[thoreau]

If you witnessed a murder there's an excellent chance that the prosecution would call you as a witness. You wouldn't be able to serve as the defense attorney for fairly obvious reasons, so the question is moot.

[Mona]

Joe -- lawyers are free to reject clients for any reason they like. Any. No one is entitled to my services; my labor is mine to provide when and as I choose. And that includes not wishing to take on "icky and hard" cases for Bad Guys.

Dan-- your notion that defense attorneys should serve as some sort of preliminary jury in determining guilt is appalling. As others have pointed out, an attorney may not knowingly permit his/her client to testify falsely, including false claims of innocence. But every accused is entitled to a proper defense. (But not entitled to have me provide it.)

And I would be interested to read your answer to Jack's inquiry? Do you believe attorneys should not represent clients in civil matters if they think them "guilty?" (No one is found guilty in a civil trial. But they may be found liable.)If I think Mr. Jones prolly did slander Mrs. Smith, should I refuse to help him make Mrs. Smith prove it?

As to the cosmetically challenged Ms. Stewart, if she did what the govt alleges, she should be locked up and disbarred.

--Mona--