There is a
political ad currently running on television that criticizes Tim Kaine for his
work as a criminal defense attorney. Entitled “America Deserves Better,” this ad
states that Kaine “consistently protected the worst
kinds of people” and “has a passion for defending the wrong people.” The
implication of this ad is that criminal defense attorneys – particularly those
who take capital cases – have defective characters because we defend criminals.
This view of criminal defense lawyers as loathsome and amoral because of our
defense of those accused of crimes would come as a shock to the founding
fathers. The men who drafted the United States Constitution placed such great
stock in the importance of criminal defense lawyers as a bulwark against prosecutorial
tyranny that they enshrined in the Bill of Rights the right of every criminal
defendant “to have the Assistance of Counsel for his defence.”
Moreover, the framers didn’t just talk the talk; they also
walked the walk. In 1770, following the deaths of five Colonial Bostonians at
the hands of British Soldiers, John Adams agreed to represent the British soldiers
in the Boston Massacre Trial. The soldiers faced death and their defense was a
deeply unpopular cause. The acquittal of these soldiers showed that the American
colony could and would choose the rule of law over mob violence. The trial
cemented Adams’s reputation, not as defective or amoral, but as a man of
principle. He was an early advocate of adopting a bill of rights and he became
our second president. Later, Adams remembered his representation of the British
soldiers in the Boston Massacre trials as “one of the best Pieces of Service I ever rendered my Country.”
I am not sure when it became politically expedient to attack
the character of criminal defense lawyers for doing a job that is so fundamentally
important to the preservation of democracy that it is expressly provided for in
our Constitution. Criminal defense lawyers and the other checks on
prosecutorial excess set forth in the Bill of Rights are the last line of defense
between citizens and a tyrannical government. While I certainly don’t mean to
imply that American prosecutors are just itching to impose autocracy on
America, students of history know that the preservation of democracy depends on
a robust system of checks and balances. Our system of governance is founded
upon the principle that power concentrated in the hands of one branch of
government is dangerous. When criminal defense lawyers are vilified and marginalized
and their work maligned, we risk bad things.
There was a time in history when federal prosecutors ruled a
land with impunity and when criminal defense lawyers were afraid to do their
work. It was called the French Revolution, and it ended poorly.
