Defending the ‘wrong people’
On March 5, 1770, on the eve of the American Revolution, British soldiers killed five Americans in the so-called “Boston Massacre.” They were arrested the next day, and the public called for immediate hanging. Who would defend such scoundrels? Prominent lawyer John Adams stepped up to take their case. He said the prisoners should be judged by evidence and not prejudice, by the law of self-defense and not the color of their uniforms. As a result, Adams risked his career and faced intense personal attacks.
On the campaign trail recently, Donald Trump aimed similar attacks against Hillary Clinton and Tim Kaine for their work as lawyers. Before entering politics, they took on criminal cases, sometimes on a court-appointed basis with low pay for indigent defendants. Some of their clients were guilty. Some not. Trump specifically attacked Clinton for winning a rape case — which is ironic given the abuse claims that he is now denying. And an official GOP ad blasted Kaine for “defending the wrong people ... the worst kinds of people.”
If Mr. Trump or a loved one were to be charged with tax dodging or draft dodging or rape, or bribery or insider trading or computer hacking, or fraud on Trump University students, you know he would race to the best “criminal defense” lawyer he could find. In the great tradition of our profession, we would defend him. And Trump would be very grateful to find that he lives in a country where we defend “the wrong people.”
In many countries today, the only defense if accused of a crime is to flee; a citizen accused has no right or ability to defend himself. In contrast, the right to counsel in this country has evolved as we have grown to appreciate its precious value in a free society.
And the GOP should celebrate this right. The party’s national platform complains about the expansion of criminal laws into ordinary business activities and even about excessive prosecutions by the U.S. Department of Justice. Many of these concerns have merit, but we must defend the “wrong people” as well as the “right people,” because in our system legal precedents for the one apply to the other.
In the Shakespeare play, “King Henry the Sixth Part 2,” Dick the Butcher famously said: “The first thing we do, let’s kill all the lawyers.” Contrary to popular belief, that wasn’t meant as a lawyers’ joke. Rather, Dick was plotting how the rebel Jack Cade could overthrow the government and become king. Cade’s rebellion failed, but the next year, Shakespeare wrote King Richard III, about a rebel who succeeded. Paranoid, ruthless and ambitious, Richard came to power by a combination of intimidation, deception and bribes. Those who could stop him were intimidated or apathetic or opportunistic. He metaphorically “killed all the lawyers,” and then killed (or “locked up”) his opponents, real or perceived, including his brother.
Which brings us back to John Adams. In the Boston Massacre trial, principle triumphed over prejudice. The prisoners were acquitted. And Adams went on to become our second president — but not before he won another acquittal for a client named Samuel Quinn, who, of all things, was charged with rape.
Criminal defense lawyers are at the forefront of challenging government overreaching and even abuse. That’s why they don’t exist in dictatorships, and why they are so important in a democracy — for Democrats and Republicans alike.
Gerger is a criminal defense lawyer in Houston.