Thursday, March 11, 2010

On Zealotry in Law

Thirty-eight years ago I was working on an undergraduate degree in criminology and corrections. The course I took on Constitutional Law was taught by a prominent local criminal defense lawyer. Many of the students in the class were police officers and some of them had actually been involved in cases that the professor had litigated.

I will never forget the day when the professor decided to discuss the right of every person to have "zealous representation" in court. One of the seasoned police officers in the room objected to some of the "zealotry" that he had been subjected to by the professor while the professor was defending a client. The officer graphically described a sequence of questions that he considered to have been inappropriate, unwarranted, and demeaning to his personal integrity. The professor tried to elevate the discussion above the level of subjectivity toward more objective and abstract legal considerations. Soon another police office chimed in with his own experience of what he considered to be "overly zealous representation" in court. One after another, the police officers in the class raised their objections. Collectively, they rode him about this for more than an hour without let up. No one else in the class could get a word in edge wise. I felt sorry for the professor. I could not understand the vehemence and the mob mentality that was on display in the room that day.

A few weeks later, the semester ended and I began a summer internship with the Albuquerque office of the state of New Mexico's Department of Probation and Parole. One of my first assignments was to go to the courthouse to observe and report back on sentences that were given to people who had previously been convicted of criminal offenses. The department had submitted pre-sentence reports on each of those convicted.

To my surprise, I discovered that one of the convicts was being represented by my constitutional law professor. I knew that the criminal he represented, the son of a prominent businessman, had been convicted of selling heroin to grade school children -– eleven and twelve year olds. In his case, the pre-sentence report was perfunctory because the sentence was not in doubt. New Mexico law at that time required that every person convicted of selling drugs would serve time in prison. Legally, there was no possibility that this person could be placed on probation.

When the time came for my professor's client to be sentenced, the professor contended that this was his client's first felony conviction. For convictions as an adult, that was true. The professor had a convenient lapse of memory about his previous felony convictions as a juvenile. The professor then told the judge that since it was the first felony conviction and the client only sold drugs to support his own drug habit, the judge could put him on probation. At that point, the prosecuting attorney objected and insisted that the law required that the convict spend time in prison. The newly elected judge clearly was not conversant with the requirements of this law. She agreed with my professor and declared that the convict should be placed on probation. My professor and his client made a quick exit from the courtroom.

The prosecutor raced down a hallway to retrieve a copy of the state statute, brought it to the judge and she quietly reversed her previous ruling. Then the police were summoned to track down the missing convict, re-arrest him, and see that he began serving time at the state prison.

I knew that my professor was lying to the judge about the requirements of the state statute regarding drug dealers. He was also my professor for a course on criminal law. That law was a topic of extensive discussion in that course.

In the brief span of one hour, on the day of my very first exposure to the courts, I began to comprehend what had previously been incomprehensible -– the reason for the rage of the police officers in my constitutional law class. I had also become an eye-witness to the huge disparity between the law as it exists in theory and the law as it is practiced.

Both in theory and in practice every person should have the right to vigorous and effective legal counsel. Ken Starr and others are right to challenge Liz Cheney and others who have attacked the patriotism of the Department of Justice lawyers who represented Guantanamo detainees.

Vigorous representation, however, does not mean transgressing the spirit and intent of our constitution and system of law. Nor does effective counsel mean attorneys should be free to succeed by contrivances that manufacture deceptive artifices, spin half-truths into plausible alibis, and negate the truth.

All lawyers are "officers of the court." They have a duty to uphold the rule of law, to preserve the integrity of our system of justice, and to serve the common good by working to improve our system of justice. Zealotry on the part of either the prosecution or the defense within our legal system tends toward excesses that serve to undermine confidence in the courts.

More than anything else, we need lawyers with the intelligence to know the legal limits and the integrity to observe the ethical limits of what they should do in their profession.


John King said...

Dr. Prescott, I agree with you entirely. However, the problem that you relate is exactly why each side of our system is absolutely necessary. The prosecution, without a zealous adversary representing the defendant, could "spin and contort" without the fear of contradiction. However, the system would not suffer with more honesty and ethical behavior.

P M Prescott said...

Sadly the system is treated too much like a game and all that matters is keeping score.