THE BEST DEFENSE

By BARTON ARONSON


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Monday, Sept. 24, 2000

In the criminal justice system according to Michael Dorf ("Death and Taxes"), the world is essentially two-dimensional. There are prosecutors and defense attorneys. They clash in trials, in which a criminal defendant's guilt or innocence is established. Because criminal defense attorneys lack adequate resources (especially in comparison to the resources enjoyed by their adversaries, the prosecutors), Dorf reasons, the trials are unfair, and their outcomes are accordingly tainted. Seizing upon recent concerns over the administration of the death penalty - in which the finality of the punishment magnifies the unfairness associated with his depiction of the criminal justice system - Dorf recommends a massive infusion of tax dollars to improve the lot of criminal defense attorneys.

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Missing from Mr. Dorf's lament over the funding of indigent criminal defense is a full assessment of how the justice system's players and resources determine who is prosecuted and imprisoned and who isn't. He fails to appreciate the role of the prosecutor; to acknowledge the various steps in a criminal proceeding that culminate (infrequently) in a trial; and to recognize other valid goals of the criminal justice system - in particular the goal of ensuring the guilty get convicted.

Everyone agrees that convicting the innocent is appalling, and no less so because it is inevitable. Sometimes the reasons are benign and sometimes they are not, but such convictions will occur no matter how much money we pour into the system. Still, some innocents surely go to jail because their underpaid criminal defense lawyers failed properly to investigate and try their cases. But that is only a piece of the story.

The Role Of The Prosecutor

Omitted from virtually every examination of the protections afforded a defendant is his first line of defense: the prosecutor. Prosecutors are sworn to uphold the Constitution, and they do not, with extraordinary exceptions, have any interest in convicting the innocent. They don't like wasting time, either. Unlike defense lawyers, whose only obligation is to their clients, the prosecutor has an obligation to get it right.

And fingering the bad guy is only the beginning. Every day, the government abandons cases it doesn't think it can win, even when perfectly persuaded of the defendant's guilt. There are, for example, cases in which there is credible evidence of guilt, but not enough in the prosecutor's estimation to persuade twelve people beyond a reasonable doubt. Sometimes the government has the evidence, but it isn't admissible at trial, or is admissible but unusable for some other reason. Sometimes the prosecutor has the evidence, but not the time. And some cases are never brought because they would be exceedingly difficult to prove, and the prosecutor has to weigh the resources that would be consumed by bringing that case against the demands of all of her other cases. The more serious the case, the less likely that is, but time and money are meaningful constraints on the prosecution of the undeniably guilty.

Plea Bargains

Even if a prosecutor does decide to go forward, Mr. Dorf's narrow focus on criminal trials excludes from view the vast majority of criminal cases. When confronted with the prospect of trial, most defendants plead. In deciding how to direct resources, society should distinguish between the criminal defense lawyer's role in the plea bargaining process and her role at trial. A good criminal defense lawyer can investigate and assess a case, improving the defendant's chances for acquittal and thereby affecting the defendant's own calculus in deciding whether to plead. But the quality of the defense lawyer cannot change the fundamental truth that every defendant knows in his heart: he either did it or he didn't.And it treats a defendant as less than human to think that the decision to plead is unaffected by what the defendant knows in his heart. It's worth wondering, then, whether redirecting our resources would encourage purely strategic behavior in the plea process. We do not want to encourage the innocent to plead, but we do not want to discourage the guilty from pleading because they like their chances at trial better.

Defense at Trial

a lot of his "defense" may have nothing to do with whether he is innocent. Moving to suppress illegally seized evidence, for example, serves to protect a defendant's (and by extension, all of our) Fourth Amendment rights. But suppressing evidence showing that a defendant committed a crime has precisely nothing to do with ensuring that the guilty are convicted or the innocent go free. Vindicating a defendant's (and our) procedural rights is important, but so are substantive results. If these ends conflict - and they do, all the time - then distributing money in the criminal justice system is, in part, about how society wants to balance these ends.

Professor Dorf's more specific criticisms of how trials are conducted are also worth a closer look. Sometimes defense lawyers "present[] no evidence of their own" because there is none to present, and the defendant's only defense is to put the government to its proof. That's common, even among very experienced criminal defense lawyers. Less defensible are the failures to investigate or to cross-examine witnesses, and here better training and improved pay would make a difference. But so would, for example, using the rules of criminal procedure to provide defense counsel with greater access to the fruits of the government's investigation - and this would be cheaper as well.

Government Misconduct

Mr. Dorf is also concerned, and rightly so, with overzealous prosecutors, and particularly with the suppression of evidence suggesting that the defendant is not guilty of the charged crime, which is a plain violation of the law. Even here, it is worth noting that the post-trial discovery of such evidence does not (except in extraordinary circumstances) result in acquittals. Instead, the conviction is set aside, and the government is given the opportunity to prosecute the defendant again. The most likely outcome from the production of this evidence is simply another trial.

At the end of the day, taxpayers are concerned with results: finding and convicting the guilty, leaving the innocent alone, and ensuring that we can walk from the bus stop to home unmolested. If guilty people are free and innocent people are in prison, where resources should go to "fix" the criminal justice is not obvious. That imprisoning the innocent is statistically inevitable does not lessen the outrage we should feel when it happens. But it is also true that the uninvestigated, unindicted, and unquestionably guilty are in line with us at Starbucks.

Since both of these incontrovertible facts must be accounted for in deciding where to put our tax dollars, it is difficult to see why any discussion of what's wrong with the criminal justice system should begin with the state of funding for criminal defense.

Barton Aronson is presently an Assistant United States Attorney in Washington, D.C. He has also served as an Assistant District Attorney in Norfolk County, Massachusetts, and he has been a lawyer in private practice. The opinions expressed herein are the author's, and do not necessarily reflect the views of the United States Attorney's office or the Department of Justice.

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