Saturday, October 25, 2008

The Conscience of a Lawyer

An anonymous comment this morning asked what I take to be a sincere question:

Being a legal officer, not a JAG, I am always interested to read this blog. The military defense attorneys I know (and I have worked with a lot of them) seem to relish in keeping criminals in the service through trickery and technicalities. Yet they wear the uniform and claim to be honorable officers. Can anyone explain this to me? Do they really want these people in the same service they are?
There is a very long answer to this question and a very short answer to this question.

The long answer is provided by a booked called The Conscience of a Lawyer by Professor David Mellinkoff. It was recommended to me many years ago by my mentor and one of the best lawyers I know, John Holt, now of DOJ. It's a book-length answer to the question, "How can you defend that guy?" And it explains the history, application, benefits, and faults of the Anglo-American legal tradition (and now professional obligation) that a defense counsel zealously protect his or her client's interests. Unfortunately this wonderful book appears to be out of print, but used copies are available through Amazon here or through here.

I can't find my copy of the book at the moment, which means it's either at the office or I've lent it to someone. (If the latter, I might have to buy one of those used copies.) So I'll have to do this from memory. Mellinkoff argues that our view of the defense counsel's duty is shaped by Lord Brougham's defense of his own defense of soon-to-be Queen Caroline when soon-to-be King George IV tried in 1820 to divorce her and prevent her from assuming the title of "Queen Consort." Lord Brougham explained, in language that would come to be accepted as a lawyer's ethical obligation:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.
2 Trial of Queen Caroline 8 (London, Shackell & Arrowsmith 1820-21). [A good description of George IV's ultimately unsuccessful attempt to divorce Queen Caroline is available here.]

So part of the reason why defense counsel behave as they do is that the legal profession makes it their professional duty to zealously advance their clients' interests without regard to the interests of the larger society. Again, read Mellinkoff's book for a wonderful discussion of that duty, its benefits, and its costs. For current purposes, suffice it to say that our Anglo-American legal tradition views it as necessary to have a buffer between the crushing weight of the state and an individual citizen and that buffer is a zealous defense counsel. The defense counsel puts the government's case to the test. We trust the adversarial give and take between a zealous defense counsel and a zealous prosecutor to reveal the truth. Sometimes, despite this adversary system, an innocent accused will be crushed by the weight of the state. Sometimes, despite this adversary system, a guilty accused will go free. But the American system of government views the possibility of some innocent accused being crushed and some guilty accused going free as a regrettable but necessary side effect of the greater good that results from using the adversary system to discover the truth.

But there is a much simpler answer to the question of why MILITARY defense counsel represent their clients even while others might perceive that representation to be against the greater interest of their military service: because it is their military duty to do so.

In my capacity as a Marine Corps Reserve officer, I currently perform military reserve duties supporting the Navy-Marine Corps Appellate Defense Division. And in that capacity, I represent Marines and Sailors who have been convicted by court-martial or who are currently facing court-martial on appeals before the Navy-Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. That is a position in the Office of the Judge Advocate General of the Navy. And Congress, the President, and the Judge Advocate General of the Navy have all expressly told me what my military duty is. Congress has said, "Appellate defense counsel shall represent the accused . . . ." Art. 70, UCMJ, 10 U.S.C. § 870. The President of the United States has also required an appellate defense counsel to "represent the accused." R.C.M. 1202(b)(2). And here's what the Judge Advocate General of the Navy has required in a regulation that binds all Marine and Navy judge advocates: "Nothwithstanding a judge advocate's status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client." JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Rule 5.4(a) (9 Nov 04). So I have specifically been ordered NOT to consider the interests of the Marine Corps when representing a client, but rather to give my "unfettered loyalty" to my client. The Judge Advocate General has similarly ordered me to "follow the client's well-informed and lawful decisions concerning case objectives." Id., R. 1.2(c). And the Judge Advocate General has made clear that a judge advocate's "representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities." Id., R. 1.2(d).

So let me give you a hypothetical. Let's say I represent a client I absolutely know to be guilty. But, let's say, the key piece of evidence against my client was the product of an unconstitutional search and I know that if I file the right motion at trial or make the right argument on appeal, my factually guilty client walks. Now, as I've made clear here many times, I don't like the Fourth Amendment exclusionary rule. If I were ever somehow to find myself on the United States Supreme Court, I would vote for the proposition that the Fourth Amendment exclusionary rule isn't required by the United States Constitution. That said, if I were to fail to use the exclusionary rule on my factually guilty client's behalf or if I were to do so perfunctorily in the hope that the military judge or appellate court wouldn't rule on my client's behalf, I would literally be violating my military duty. Not only that, I would literally be committing a criminal offense under the UCMJ. Art. 92, UCMJ, 10 U.S.C. § 892. So raise the issue I would, and I'd fight like hell to win. And if I did win, I might even take some small measure of personal satisfaction for having performed my military duties well even while privately putting another check mark on my mental tally of why the exclusionary rule is a bad idea.

Similar statutes and Rules for Courts-Martial and regulations apply to all trial-level and appellate-level defense counsel in the United States military. So the next time you want to get mad at a defense counsel for performing his or her duty, don't. If you must get mad, get mad at Congress or the President. Or, better yet, realize that Congress, the President, and the Judge Advocate General of the Navy had very good reasons for assigning those duties to defense counsel and don't get mad at all.


Anonymous said...

The other half of this argument is that trial counsel or the government might be wrong, and we - the anglo-american legal tradition - have decided that the adversary system is the best (although not infallible) way to reach the "truth" about _accusations_.

Dew_Process said...

To add to the cogent comments posted, there is another component to the age-old question, "how can you defend a guilty person?"

"Guilt" is a legal concept, which is decided either after a plea or a verdict - until that happens, the client is both presumed innocent and remains so until there is proof beyond a reasonable doubt.

One may have unquestionably "done the deed," say e.g., shot someone, but, if it was self-defense, then obviously the law exonerates the conduct. The fine line between the two, is why we have trials. And, as the Innocence Project has shown time-after-time, human foibles and bad lawyering have sent many an innocent person to death row!

And to add to Dwight's eloquent commentary, there is another, equally as fundamental reason that I like to bring out on voir dire. The oath one takes upon commissioning [very similar to the one we take as lawyers upon beind admitted to the Bar], requires our pledge to "support and defend the Constitution from all enemies, foreign and domestic...."

Defending one's Constituional "rights" is thus, a duty for all officers, just as there is a statutory duty for military defense counsel to abide by. And, as we all know, sometimes the duties we face as Defense Counsel are mispercieved by layperson, Trial Counsel, and Military Judges.

The "good news" here is that a lay legal officer is trying to insure that s/he performs his/her "duties" in a conscientious manner. The "bad news" is that there are still non-lawyer legal officers!

I'm not picking on any particular Service - just observing that to me, that is evidence of the need to increase the number of JAG billets.

Anonymous said...

Hardest client a defense counsel will ever defend is the innocent one.

Defending a "guilty person" is simple/easy -- be a zealous advocate and do all you can to ensure your client gets the best result possible. If that result is a full acquittal or the dismissal of charges -- great.

I never lost one night of sleep knowing that my "guilty" client was acquitted and/or not discharged from the service.

Anonymous said...


The duty is not to zealously defend one's client; it is to zealously defend one's client within the bounds of the law.

I don't know if the omission was inadvertent, but it's not minor.

Former Code 45'er

Anonymous said...

11:13 Anon,

It seems to me that your "within the bounds of the law" addition is minor. What are you driving at? Defense attorneys kidnapping witnesses, destroying evidence, lying to the judge, etc? I think we agree.

But if you are implying a robotic adherence to status quo legal rules (which surely would make a defense attorney's job easier and everybody happier, especially in the military) then I disagree with your "within the bounds of the law" warning. Defense attorneys have an ethical obligation to make "a good faith argument for an extension, modification or reversal of existing law," which also means precedent. ABA Rule Rule 3.1 Meritorious Claims and Contentions.

So don't be so cryptic. I'll throw it back at you: what "out-of-bounds" legal practice were you driving at?

Dwight Sullivan said...

2313 former Snake & Ducker -- this was part of the original post: "unfettered loyalty and professional independence during the representation consistent with these Rules." Isn't the "consistent with these Rules" the very point you are making? (A point which, as this quotation demonstrates, wasn't omitted.)

Anonymous said...

11:13 Anon:

Who said anything about defending a client outside the "bounds of the law"?

Your paranoia is misplaced.

Anonymous said...

Concur regarding the ethical duties of a defense counsel, but I think the legal officer's question also reflects a view of courts-martial that I have commonly encountered among command authorities: i.e., that they are fundamentally viewed as personnel actions (about getting servicemembers "out of the service"), and not as federal criminal trials.

Anonymous said...

Pretty strong responses to the "within the bounds of the law" comment.

Don't know what I'm talking about? Ask Lynne Stewart why she's spending 28 months in federal prison for representing the blind sheik. And it had nothing to do with the ethical rules, until that is, her federal conviction demanded disbarment.

My point is that a defense counsel cannot do whatever it takes to secure an acquittal. There are limitations. That, to my mind, seemed a bit inconsistent with the original post.

Damn, there's some aggressive folks here.

Anonymous said...

Anonymous 1253:

You are off the mark once again.

Nobody ever said and/or implied a defense counsel should commit a crime to secure a good result.

Go make yourself a sandwich and enjoy the Redskins game.

Dwight Sullivan said...

1253 Anon -- Lynne Stewart DID violate the New York Lawyers Code of Professional Responsibility by violating the law in her representation of Sheikh Omar Abdel-Rahman. DR 7-102 of the New York Lawyers Code provides: "In the representation of a client, a lawyer shall not . . . Counsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent [or] Knowingly engage in other illegal conduct . . . ."

Similarly, the naval rules of professional conduct provide, "It is professional misconduct for a covered attorney to . . . commit a criminal act that reflects adversely on the covered attorney's honesty, trustworthiness, or fitness as an attorney in other respects" or to "engage in conduct that is prejudicial to the administration of justice." R. 8.4.

There is no inconsistency between the original post and the proposition that a defense counsel "cannot do whatever it takes to secure an acquittal" because, as I pointed out, the original post expressly noted a limitation on the defense counsel's representation: the requirement to provide representation "consistent with these Rules." And as demonstrated above, those rules provide a number of limitations on representation.

Anonymous said...

Okay, I'll chalk our difference up to semantics.

Query: since you were the one who discovered the omission of statutory authority in Kennedy -- kudos for that -- do you think it would've been incumbent on Kennedy's lawyers to disclose that to the Court had they known?

I ask because I had a few cases where defense counsel failed to mention contrary controlling authority to the court. Not once did a judge hold their feet to the fire. I had thought that was a clear violation of the ethical rules.

I get that the federal statute at issue in Kennedy was not controlling, indeed the outcome proves the point, but I'm curious what you think about defense counsel's disclosure obligations.

Dahlgren's Leg said...
This comment has been removed by the author.
Anonymous said...

It seems to me that the "controlling-authority rule" is the line between making a fraudulent argument to the court and merely advocating for a client. If it's controlling you must disclose it. If it's not controlling, you'd be a fool to waste time and effort documenting all the authority against your position.

It would be absurd to require either the government or the defense to argue the other's case. There is no obligation to scour the law for persuasive authority that's contrary to one's argument.

But, you should also know that those bad-for-your-argument cases exist; that way when the judge askes you if other courts have ruled against your position you can answer honestly and try to distinguish those cases.

Anonymous said...

I asked the original question. I understand the defense attorney (who is like a public defender) doing his job. (Defense attorneys who do it for money are toally different ethically.) What I can't understand is the delight that the navy officer defense attorneys that I work against get from having an admin board recommend retention. Everybody knows the sailor will be separated, but the arrogance of the defense attorneys (both before and after the admin board) give JAGs a bad name -- at least around here. The JAGs at the RLSO here seem more reasonable, but they are wrong a lot of the time so we don't rely on them for advice.

Anonymous said...

This posting is a complete cop out. The typical defense attorney may tell himrself that he needs to wreck American society, one criminal case at a time, to defend the larger "adversarial system" but think about what you are actually doing. Does it give you no pause? Do you absolve yourself from the crimes your clients commit subsequent to the acquittal that you won for them?

Anonymous said...


"wreck American society" . . . don't you think you're gilding a lily a bit? Can you give an example of a single legal system, which lacks a robust defense bar, that you consider superior to our system? Have you somehow cultivated the opinion that legions of guilty people are being acquitted? And, if that's so, how is that the fault of the defense instead of the government?

Anonymous said...

Sorry, but if there's an acquittal, then there was no crime to absolve yourself from.

We defend our clients against the United States government, and all of its resources. If the United States government cannot put a "guilty" client out of the military at court-martial against a single advocate, the defense counsel is the last person who should be losing sleep.

He's guilty when the judge or panel says so. Until then he's just a guy you think is guilty.

Everyone deserves a zealous defender. If you want someone convicted or kicked out of the Army, we're running off the exact same rulebook, so get on it.

Anonymous said...

0720 - as a former defense counsel, I can tell you that my "delight" in obtaining a vote of retention from an admin board was nothing more than pride in a job well done. If we do not often seem reasonable to you, perhaps that is because our experience has shown us that performing our duties in a way that a command legal officer considers to be "reasonable" does not usually generate the best result for our client.

Dwight Sullivan said...

I'm acting against my better judgment by responding to 2006 Anon, but do tell me, 2006 Anon, where I went wrong in my analysis that failing to defend a client I'm ordered to represent or defending the client but gundecking it would be a criminal offense under the UCMJ.

I happen to think that there's a societal benefit to be gained from a zealous defense counsel (acting within the bounds of the law, of course :-)) actually defending a client who wants representation rather than setting himself or herself up as the ultimate dispenser of justice by deciding who deserves a defense and who doesn't. Our society itself acts on the assumption that it benefits from tasking defense counsel with representing any criminal accused who wants to lodge a defense. But set that question to the side. Should the individual defense counsel ordered to represent a guilty client violate that order?

Let's think about an individual pilot participating in a bombing run. He's told to take out a particular position that is a legitimate military target. But he thinks that it will produce some collateral damage -- and maybe even deaths -- to civilians nearby. Should he refrain from dropping the bomb he's been ordered to drop because he arrives at a different cost-benefit conclusion than his higher-ups who ordered him to drop the bomb? If you were a U.S. servicemember taking incoming fire from the legitimate military target, what would you think of his decision not to drop the bomb?

Let's say the pilot does drop the bomb, an enemy artillery position is silenced, but some civilians nearby are killed. Would it be a "cop out" for the pilot to say to himself that he knows he caused civilian deaths, but he did so in the execution of a legitimate mission? Or is that the essence of being a member of a military organization? Would it be morally wrong of the pilot to take professional satisfaction in carrying out his military duties well by putting bombs on target even though the consequences included not only accomplishing his mission, but also civilian deaths?

These questions aren't rhetorical. I really hope you'll answer them.

Anonymous said...

An aquittal does not mean a crime did not occur. That may be one of the reasons the trier gave an aquittal but not the only reason. Another may be the government did not prove BRD that the accused did the crime. I think we've all heard members say, "We think he did it but the evidence left some doubt."

Anonymous said...

I have 7 years in the Army JAG Corps, all on the government side. I have close friends of course doing defense work. While we don't always see eye-to-eye on issues, I've never seen any of my good friends taking "undue" or "unprofessional" delight in sticking it to the government.

I have seen a few defense counsel who were sometimes over-zealous in their defense work (that is, they took the case personally). Those were also the least effective defense counsel that I've encountered.

Anonymous said...

To the original poster. Do you note the same concerns to trial counsel who prosecute someone or attempt to administratively separate someone who is factually innocent? Shouldn't your same concerns cause you to question their dedication to the service if they want to put someone out of the service or in jail who has done nothing wrong?

Anonymous said...

Mr. Dwight Sullivan (11:48pm): Your comparison of a bomber pilot and a defense attorney is most apt, particularly when the bomber pilot knows that the "collateral damage" will be U.S. Servicemembers. The "just following orders" defense went out at Nurenburg. One wonders if a "zealous" defense attorney who becomes a crime victim would change his tune...

Anonymous said...

This blog just got scary. Amendment VI to the constitution: In all criminal prosecutions the accused shall enjoy the right ... to have the Assistance of Counsel for his defense. That's all that needs to be said. That officers in the armed forces would scoff at that, or malign the officers who are doing their military duty and constitutional duty truly scares me. You may not like my job, just as you may not like the IG, NCIS, PERS, or any other agency that makes your job harder, but don't assume that we're "anti military" because we do our job and take satisfaction in doing it well. I volunteered to serve my nation just as you did, and the fact that I carry a pen rather than a rifle makes me no less an honorable military officer.

Anonymous said...

The anti-defense counsel comments in this post are convincing. The framers of the Constitution were cleary a bunch of idiots when they decided to afford those accused of a crime with rights. Until we can get those rights in the constitution eliminated, we should amend the military oath to the following: "I will support and defend the Constitution, except those parts that afford rights to the citizens of the US. . . ." That will teach those darn zealous military defense counsel that they should be sand-bagging -- orders of superiors, and ethical duties be d***ed.

Anonymous said...

Everything said about defense attorneys just "doing their duty" and celebrating an acquittal as a job well done could be said about prison officials who perform executions. They are just carrying out their duty, but imagine how offensive it would be to the average citizen if they celebrated afterwards? After all, they are just performing their duty within the system, and doing a job well done. Like the defense attorney, it is not their job to care whether the person is guilty or not. that decision is left to others. When you look at it this way, as a defense counsel, do you understand why the average person does not celebrate your victory?

Anonymous said...

What Bill Cassara said.

Anonymous said...

What Bill Cassara said x2.

Dwight Sullivan said...

I'm going to post one more comment before leaving this thread for some new business and non-CAAFlog work. Anon 0909 suggested that "the 'just following orders' defense went out at Nurenburg." That's wrong historically and legally (to say nothing of using a non-standard spelling, though I am probably guilty of creative spelling more than most). The defense of obedience to orders remains very much alive. R.C.M. 916(d) provides: "It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."

More relevant for purposes of this thread, a military member is criminally liable for violating an order unless the military member demonstrates that the order was illegal.

Since there is nothing unlawful about ordering a pilot to drop a bomb on a military objective that will also kill and wound a non-disproportionate number of civilians, there is nothing unlawful about ordering an artillery battery to drop ordinance on enemy soldiers danger close despite knowing that this will also kill some U.S. servicemembers, and there is nothing unlawful about ordering a judge advocate to represent a military accused, Article 8 of what is often called the Nuremberg Charter wouldn't change the answer.

The military subordinate doesn't get to decide whether his or her superiors made the right moral call. As long as the order is not unlawful, it is the subordinate's duty (under pain of court-martial and, in time of war, even death) to carry out that order.

Military law has taken a dim view of servicemembers who defy military authority based on their own sense of morality. See, e.g., United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999). And rightfully so. An effective and disciplined military requires the individual's subordination to command authority.

As to Anon 0909's final question, I have (like, I suspect, most Americans) been the victim of crimes. I hope I don't flatter myself by thinking I'm a zealous defense attorney. So, no, it doesn't change my tune.

Anonymous said...

Anon 12:23. Your analogy falls apart. Here is the flippant answer to your dilemma: if the death row inmate had a good defense attorney, he would not have been sentenced to death, the executioner would not have been needed, and the nobody in society would be offended. But, less sarcastically, society DOES celebrate capital punishment, it also CENSORS capital you don't get to see what very well could be the executier's pride in a job well done. Society is not offended by capital punishment, nor offended by gloating over it...see Tucker Carlson's infamous interview of then-Governor George W. Bush, executioner from Texas, in 2000. (That interview should have clued me in that there was something deeply mediocre about the guy) Were you offended when the executioner's gloated over hanging Saddam Hussein? I was. I thought it was a disgrace. But not many other people were.

Anonymous said...

I agree with Sullivan and others like minded, but I'll offer another reason why I think so. If I was talking to the Legal Officer I’d explain to him/her that these zealous defense attorneys are absolutely necessary and the key that allows for the existence of the military justice system. Without them the system that he/she needs in their Government role as a legal officer to assist them and the command maintain good order and discipline as a tool to mission accomplishment would be in jeopardy.

As a general proposition the Constitution and the Bill of Rights is fully applicable to U.S service personnel. Thus, the protections afforded civilians before life or liberty may be deprived are also available to men and women in uniform. It follows that our unique military justice system must therefore pass constitutional muster for it to remain viable. I hardly think it would survive if the defense bar was comprised of officers who didn’t zealously advocate for their client’s best interests, and instead “sold their clients down the river” because they were primarily concerned the Government’s interests and their own interests within the Government. Thus, while Trial and Government personnel/attorneys are part of the process, only defense counsel indispensible to it. If the command wants to continue to keep military justice arrow in their quiver of tools they utilize to achieve good order and discipline in an effort to accomplish the mission, they should not only tolerate, but demand the very best representation for their Sailors, and yes, even the ones that they know are guilty.

Anonymous said...

Mr. Cassera: A prosecutor cannot ethically proscecute someone he knows is innocent. He must believe probable cause exists to prosecute. A defense attorney has no such ethical concerns. And a defense attorney who both (1) tries to win acquittals for people he knows to be guilty (by lying to the jury); and (2) profits from it by taking a fee, is the most repugnant creature known to society.

Anonymous said...

Although all it takes is probable cause for the prosecutor to draft a charge sheet, usually with only the purported victims side of the story, how many prosecutors does it take to withdraw charges when it becomes clear the story is made up? ( 1, 2, 3. . .3)Ahh, the world may never know.

Does the same logic apply when the 32 officer recommends NJP and the SJA goes to GCM?

Anonymous said...

What does a prosecutor do when the victim says Sgt X did the crime and Sgt. X's attorney will not let him speak to LEO? Quite frankly a 32 officer's take on rules of evidence and admissibility of evidence is nearly useless. Most don't have military justice experience and a good prosecutor will not put on the entire case at the 32, just enough to meet the requirements.

Anonymous said...

Anon 3:58. Your analysis is flawed. Just as you claim a prosecutor can not ethically prosecute someone they know is innocent a defense counsel can not ethically put on testimony he knows to be false. But you are kidding yourself if you do not think both occur. I can point to several examples of when prosecutors pressed forward with a case they did not believe they had enough evidence to win, and plenty of cases where prosecutors took cases to court they believed should have been resolved at NJP.

Paul said...

Taking a case to trial not thinking you are going to win is not unethical. Taking a case where the evidence before the prosecutor indicates innocence is unethical. But taking a case that the prosecution believes is close, that maybe the key witness may be discounted or the members aquit on good character alone is not unethical

Nor is it unethical to take a case to trial that the prosecutor believes should go to NJP. THere is no service JAG ethical instruction that says such and I would as you to point to a state bar that has such a rule.