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.