Here are my thoughts on yesterday's interview with the successful criminal trial lawyer.

There are theoretical limits on the extent to which an American lawyer may argue his client's case, because the lawyer is not only his client's advocate, but also an "officer of the court."  The court's purpose is to ascertain the truth and to render justice.  There was a time when a lawyer who was convinced of his client's guilt would diligently make sure that his client's rights were protected, but would not insult the court by making frivolous arguments to cause chaos and confuse the jury so that justice could not be done.  Today, of course, thanks to cases like the O. J. Simpson trial, the public is painfully aware that the practice of law has changed in a significant way.  The lawyer's role as an officer of the court, duty-bound to get to the truth, is viewed in a different light even by the lawyers themselves.  If a lawyer's skills can keep an innocent man out of jail, just think how good (and valuable) his skills must be if he can keep an obviously guilty client out of jail.  

It's one thing to possess the training and skills to keep an innocent man from being found guilty.  It's quite another to be able to keep a guilty man from being found guilty.  The latter ability requires a lawyer to have two things: a superior set of litigation skills and a complete disregard for his role as an officer of the court.

Too many lawyers today assume the risk of insulting the court by making arguments so ridiculous that anyone with an IQ above 70 would see right through them.  As insurance, these same lawyers try to populate juries with as many morons as possible.  

When I worked on Capitol Hill, there were intractable partisans, as there always have been, but the only thing enabling anything to get done in spite of the obstructionism were the nonpartisans who worked behind the scenes to make things happen.  The nonpartisans I'm talking about weren't weak-kneed compromisers, as the reader might incorrectly assume, but people who knew what the facts were and how the world worked.  They didn't twist facts into lies just to fool the public into believing their favored fantasies.  This was back in the day when the two political parties were not as closely aligned with their current liberal and conservative philosophies of government.  (In other words, there were still liberal Republicans and conservative Democrats.) There were people who postured and others who made things work.  In my experience, these were completely separate groups of people who did their work in spite of the other.  In my view, this is how lawyers were supposed to be:  more interested in winning for truth and justice than in winning at the expense of truth and justice.

A criminal doesn't just hire a lawyer to protect his rights.  He hires a lawyer to get him off.  Today's criminal lawyer will pull out all the stops in the organ of implausibility to confuse the judge and jury so that his client will get off, even if it means ruining the trial.

The theory is that the prosecution presents evidence to convince the judge or jury that the defendant is guilty while the defense tries to cast doubt on that evidence.  The truth emerges from the arguments.  As we saw in the Simpson trial, the truth won't come out if the system is not treated with proper respect.  Even if the defense attorney knows that the defendant is guilty, there is no longer any minimum standard of reasonableness or even of shamefulness that any argument must meet before it is offered in an attempt to get the defendant back out on the street to commit more crimes.  The defense attorneys no long believe that they have a responsibility to help the court reach the truth.  Their responsibility is to throw as many arguments as possible up against the wall to see what sticks.  The judge and jury decide the truth, while the lawyers have so narrowly defined their roles that the truth is irrelevant to what they do.

In one sense, one could argue that these lawyers can sleep at night because they have so much faith in our system of justice that they know that whatever decision the system makes is the right one, even if it is the wrong one.  Perhaps they are free-market jurists, devising more effective ways to get criminals back out on the street so that prosecutors will have to respond to the competition by becoming better themselves.  Competition improves the breed, as it were.  High-priced defense attorneys also do not like to lose to their much lower paid government counterparts.  Perhaps people today simply feel justified in lying to the government.  

If the result of a particular trial is wrong, that will give the government incentive to improve its abilities and skills (within constitutional parameters, of course), which in turn will encourage more outrageous tactics for getting the criminal back on the street.  Too many defense attorneys view their jobs as having nothing to do with truth, justice, or even what we used to call the American way.  No, whether their clients are guilty or innocent is not really their concern either.  Their only job is to get their defendant back out on the street as soon as possible, nothing more, nothing less.  Any concerns beyond that are the concerns of other officers of the court.

The venerated Anglo-American adversarial approach to finding truth has suffered by perverting it in extreme ways, and now it has been perverted into a complete misapplication in the field of journalism.  I will explain this next time.