Don't think a good defense attorney matters? Think again

Years ago, I appeared on "The Ricki Lake Show" in an episode about persons who had been freed on appeal after being wrongfully convicted of crimes. As a former criminal prosecutor with the Cook County State's Attorney's Office in Chicago, I was there to represent the "prosecution viewpoint" (whatever that might be), along with the leader of New York's Guardian Angels representing the "victims' viewpoint."

The other guests consisted of innocent persons whose convictions had been reversed, their appellate lawyers, their parents and a reporter who had helped vindicate a father wrongfully convicted of murdering his young daughter. As I approached the set, I wondered what I could possibly say that would ward off the hoots of the audience, especially given that I was just as appalled by wrongful convictions and prosecutorial abuses.

The point I decided to make was simple: For better or worse, we have an adversary legal system that relies for its proper operation on having competent lawyers on both sides. In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages.

The reaction of the others on the stage with me was stunning. The former defendants all began nodding their heads while their lawyers, who represented them on appeal but not at trial, sat sullenly beside them. Afterwards, some parents even came up to shake my hand.

The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.

Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny. You probably can't picture their faces and don't know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That's because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients' innocence.

These lawyers held the prosecutor's feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor's misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

There is no rule book for what prosecutors call "heater" cases like this one. Navigating the law, politics and publicity in such case is an art not a science. These fine lawyers displayed all the skills and tenacity that made me want to be a criminal trial lawyer after watching the television series, "The Defenders," when I was 10 years old.

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

As a prosecutor working "felony review," when I was in a Chicago police station at 3 a.m. deciding whether to approve charges, I had to evaluate the evidence as if I were a defense attorney. Where is the murder weapon? Where are the proceeds of the robbery? How credible are the witnesses? How was the identification of the accused conducted? In this way, the mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases even before anyone is charged. Thanks to defense lawyers defending the innocent and guilty alike, prosecutors generally win their cases because they avoid weak cases they may lose. (After the charging stage, a prosecutor's ability to avoid losing at trial by plea bargaining weak cases is a serious, but separate and complex issue.)

Paradoxically, the system's overall accuracy makes defending the truly innocent all the harder. While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence. And that's not easy. Further, because representing the guilty consists mainly of negotiating pleas or knocking holes in the prosecutor's case, defense lawyers do not always develop the skills needed to effectively defend the truly innocent or, as important, know when to deploy them. Defense lawyers become as skeptical about their clients' claims of innocence as everyone else, if not more so. All this contributes to inadequate defense lawyering, which thankfully did not occur here.

Good lawyering alone, however, was not enough to free the Duke players. While the "mainstream" press largely swallowed District Attorney Mike Nifong's narrative of racial oppression, the blogs--especially history professor Robert "K.C." Johnson's blog Durham-in-Wonderland (durhamwonderland.blogspot.com)--provided the means by which the public could learn about the fruits of the defense's efforts. (Mr. Johnson's own difficulty in 2002 obtaining tenure at Brooklyn College over ideologically-motivated opposition was chronicled on this page by Dorothy Rabinowitz, who also, true-to-form, came to the defense of the Duke Lacrosse players.)

Finally, without the competing governing powers of the North Carolina state bar, the Attorney General's office, and potentially the U.S. Justice Department, there would simply have been no one in authority to rein in this prosecutor. It is worth noting, to those who champion political accountability as the highest form of legitimacy, that District Attorney Nifong was elected by, and presumably "accountable" to, his constituents. Nevertheless, his power needed to be checked by competing government agencies and a free press.

Rather than praising the defense lawyers, some of the same folks who whooped in support of Mr. Nifong's efforts are now bemoaning that it was the supposed wealth of these students' parents that enabled them to mount so effective a defense. Never mind that draining all their savings and putting them in debt is an additional injustice resulting from this wrongful prosecution. Of course, as my grandfather used to say, "rich or poor, it's nice to have money," but this case shows that wealth is no defense to public ruin. Sometimes it even invites it.

Let us not be distracted all over again. The difficult problem of innocent defendants typically arises in run-of-the mill cases where prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyering, an indifferent press and an oblivious public. There are no easy solutions to this. But refraining from ridiculing lawyers in general, and criminal defense lawyers in particular, would be a nice start, and one that lies within the power of everyone reading these words.

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