Defending a Bad Cause

ON Sunday, February 1, 1623, Archbishop Laud recorded in his diary that he had that day stood by the most illustrious Prince Charles Stuart, at dinner. The Prince ‘was then very merry, and talked occasionally of many things with his attendants. Among other things, he said that if he were necessitated to take any particular profession of life he could not be a lawyer, adding his reasons: “I cannot (saith he) defend a bad, nor yield in a good cause.”'

Twenty-six years afterward, almost to the day, the former Prince, then Charles I, was beheaded at Whitehall, though whether in a good or a bad cause — whether as a glorious martyr or an inglorious tyrant — is a question about which honorable and patriotic Englishmen contested with one another, on the field of battle as well as in debate, for more than a century after his death, and came at last to peace and a mutual toleration rather than to agreement.

The cause of King Charles has passed, never to be finally decided, into the realm of old, unhappy, far-off things. His theory of the divine right of kings is dead, — or at least has been transmuted into a theory of the divine right of the legislature to make police regulations, — but his opinion about the practice of law is as representative of the opinions of a large number of intelligent men and women to-day as it doubtless was when he made his casual statement of it on that Sunday morning three hundred years ago.

I have listened a score of times to informal discussions among laymen about the ethics of the legal profession. Sometimes no more is expressed than a mere personal disinclination to be a lawyer, as on the part of Prince Charles, because of the necessity of urging unconscionable claims and defenses. Sometimes a question is asked like that which Boswell addressed to Dr, Johnson: ‘But what do you think of supporting a cause which you know to be bad?’ Sometimes an apologist argues i n the words of Dr. Pa ley, the English theologian, that ‘there are falsehoods that are no lies ... a criminal pleading not guilty; an advocate asserting the justice, or his belief in the justice, of his client’s cause . . . no confidence is destroyed, because none is reposed; no promise to speak t he truth is violated, because none is given.’

I must confess to a dislike for this last piece of casuistry. I object to the reference to advocates immediately after criminals; and I do not relish the implications of the statement, that the falsehoods of an advocate are not to he regarded as lies because nobody will believe them. But, whatever form of words may be used, the truth is that many people feel — I am persuaded that some of the readers of the Atlantic feel — that the successful practice of law, particularly in criminal cases, is incompatible with conduct which is, in the highest degree, honorable, and with speech and thought which arc, in the highest degree, candid. And the further truth is that this feeling is centred about the supposed duty of a lawyer in what are commonly referred to as ‘unjust causes.’

The accepted legal canons defining that duty have been stated many times, but, unfortunately, for the most part in books which are to be found only in the hands of lawyers and students of law. The purpose of this paper is not so much to restate them as to set down my own observations about the problem of unjust causes during a professional experience of more than fifteen years in a small American city. If what I have to say is almost entirely concerned with the defense of accused persons, the reason lies in the fact that criminal practice, as all the world knows, presents the question under consideration in its most acute and debatable form. Like most lawyers in active practice in small cities, I have tried all sorts of cases for all sorts of clients, often with an intimate knowledge of surrounding circumstances and an opportunity for insight into hidden motives that are not possible of attainment in our larger centres of population; but, apart from this experience, I cannot claim to speak with any special authority, either as a lawyer or as a moralist. I am comforted, however, by the conviction that, at all events, I know as much about the practice of morality as Dr. Paley did about the practice of law.

I

There are four sources of information from which a lawyer representing a defendant in a criminal prosecution may be said, with any degree of accuracy, to ‘ know that his client is guilty’; (1) the entry of a plea of guilty in open court; (2) personal observation, as by having actually witnessed the commission of the offense; (3) a confession privately made by the client; and (4) such an ‘assemblage of probabilities,’ whether resulting from the weight of the evidence in favor of conviction or otherwise, as to amount to a moral certainty. This classification appears to me to be exhaustive, and it is obvious that, in the first case supposed, no question of legal ethics is involved, since a defendant, in pleading guilty, instantly brings to an end the prosecution against him by his own solemn and deliberate act. It is likewise obvious that, in the second case supposed, the ethical question involved is a very simple one — no man ought, in the same proceeding, to appear both as a witness and as an advocate, and, accordingly, a lawyer should refuse professional employment in a cause in which he has such a knowledge of the facts at first hand as might require him to offer himself for examination on the witness stand.

The duty of a lawyer to whom a client has made a private confession of guilt is, in theory at least, equally simple — he ought to advise his client to plead guilty, and, if the client refuses to do so, he ought to withdraw from the case. In practice private confessions are much less common than is generally supposed, and I can give but two instances from my own experience.

On the first occasion, I was retained by a Negro who had been indicted for larceny. I asked him what his defense was, and he replied that he was guilty, but that he guessed he ‘had better deny it in court,’ and that, if he did so, his ‘word would be as good as hers’ (the prosecutrix’s). I told him that he would have to plead guilty, and after only a very little hesitation he did so with the utmost good humor.

On the second occasion, I was consulted by an intelligent white man who was being prosecuted for conducting a gambling house. He told me that the prosecution against him was a frameup; he did run a gambling house, but the game was straight and his arrest was the act of players who had lost their money and who had proved to be poor losers. I asked him whether the general public frequented his house and whether he got a rake-off on the game, and he answered both questions in the affirmative. I then said to him that, on his own statement, it was manifest that he was violating the statute, and that there was nothing for him to do except to enter a plea of guilty. He went out of the office without making any special comment on what I had told him, and some weeks afterward it was brought to my attention that he had retained other counsel. Under the circumstances, I felt sufficiently interested in the case to make it my business to find out what happened at the trial. The defendant testified that friends of his sometimes came to his house to play poker and sometimes played for money, but that the public was not admitted; that the game was straight; and that he did not get a rakeoff. The verdict of the jury was ‘Not guilty.’ I do not think for a moment that the reputable and experienced advocate who tried the case for the defense acted improperly. I am satisfied, on the contrary, that the defendant learned some law during the course of his conference with me, and, having duly digested it, amended his story to meet the requirements of an acquittal.

A somewhat novel view, though one not fundamentally inconsistent with what has been said, was expressed by the Earl of Birkenhead, former Lord Chancellor of Great Britain, in an address delivered at a banquet of the American Bar Association, on August 31, 1923. ‘If,’ he said, ‘you take the extremest case of all, the case where it has been put at its strongest against the ethical situation of our profession, the case where a confession has been made by a prisoner to an advocate — I would meet that case without hesitation. It arose once at a critical stage of a great English litigation. I would meet that by saying, “You are not to be the judge of whether that confession is made under an aberration, under a delusion, in hysteria; you are to put the whole facts of that case as those facts are known to you before the jury and before the judge, and they and not you are to decide as to the facts that have been proved, and as to the reliability of that which has been admitted."' This amounts to saying to the defendant, ‘Do not plead guilty, because guilt and innocence are matters of law which you are incompetent to decide. Tell the whole truth in open court, and the judge and jury will draw the proper conclusion.’ I am bound to say that this point of view seems to me to be ethically unobjectionable, and I am disposed to think that I should adopt it in a capital case, because false confessions of guilt, whether induced by mental abnormalities or an unselfish, though perhaps misguided, wish to shield the real offender, are not particularly uncommon. But in cases of minor importance, where the facts are comparatively simple and there is no reason to suspect hysteria or deliberate deception, it seems to me unnecessarily scrupulous to oppose the defendant’s willingness to enter a formal plea of guilty.

The ‘great English litigation’ to which Lord Birkenhead referred was doubtless that resulting from the death of Lord William Russell, an old man who was found murdered in his bed in May 1840. His valet, Courvoisier, was suspected and tried for the murder, and was defended by Mr. Philips, an eminent barrister. The defendant denied his guilt, and the evidence against him was purely circumstantial. In the course of the trial, which lasted three days, Courvoisier suddenly demanded an interview with his counsel, confessed that he had murdered his master, but insisted that Philips should defend him to the uttermost. What happened thereafter is, unfortunately, disputed, but I state the facts as Philips contended them to be. In great distress of mind, Philips consulted a number of famous judges and barristers. They were unanimous in advising him that, under the circumstances, he was bound to go on with the case. Courvoisier was entitled to a trial by jury and was entitled to be represented by counsel. The facts were too complicated to permit a new lawyer to take charge of the case without preparation. Philips had accepted the employment and consequently was bound to proceed. This Philips did. Courvoisier was found guilty and duly executed.

With every respect for the learned judges and barristers who were consulted, I cannot accept their conclusion. Philips was Courvoisier’s attorney, and on that account was in duty bound to express to the court and jury his client’s version of the facts. If this version changed during the course of the trial, Courvoisier could not complain, as I see it, if his attorney’s expression of it underwent a similar change. I think Philips should have withdrawn from the case, unless Courvoisier had been willing to tell on the witness stand exactly what he had told Philips in private.

The circumstances of this case are, of course, altogether extraordinary. Most accused persons protest to their lawyers that they are innocent. A few confess their guilt. I doubt whether there is another instance on record of a defendant actually on trial making a private confession of guilt, while continuing to profess his innocence in public.

II

But though one accused of crime persist in a denial of the charge against him both in public and in private, the evidence of his guilt may be little short of overwhelming. Moreover, his statement of what occurred may be inherently improbable, and his reputation, both generally and in connection withthe previous commission of offenses like the one concerned, may be equivocal or notorious. These considerations and a hundred others, slighter perhaps, but none the less persuasive, may create a settled conviction in the mind of his attorney that the accused is indeed ‘guilty in manner and form as he stands indicted.’ Of course, a lawyer is not in the position of an innkeeper and a common carrier—that is, bound to render service to whosoever claims it — and he is professionally free to withdraw from such a case. He is likewise professionally free to proceed with it.¹ But is he morally free to do so?

It is, I think, here, rather than in the instance of a private confession, that the current of public opinion sets ‘at its strongest against the ethical situation’ of the legal profession. A lawyer who continues to defend a client from whose lips he has received a private confession of guilt is, after all, only a dishonest lawyer; but a lawyer who urges a defense which he believes to be false may be held, arguably enough, to be, at the least, a disingenuous man, and his disingenuousness may well appear the more significant and corroding because he is subjected to no sort of professional discipline or censure on account of it. The first judgment condemns only the particular advocate who has been false to his trust, but the second condemns all advocates, and calls into question not only trial by jury but every system of administering justice of which advocacy is a part.

Whatever the system may be, the dramatis personœ of all criminal prosecutions are the same, an accuser and an accused person, and the problems presented are those of determining what actually happened in respect to the matters with which the defendant stands charged and what the consequences to the defendant ought to be. Our ancestors experimented with a number of ways of solving these problems, such as trial by ordeal and by wager of battle, and finally adopted the expedient of submitting disputed matters of fact to the finding of twelve laymen and matters of law to the decision of a single judge. It so happens that I am a very warm and convinced believer in the jury system, particularly where it exists in its traditional and characteristic form and unanimous verdicts are required, but, as may be freely admitted, it sometimes results in the conviction of the innocent and sometimes in the acquittal of the guilty. With its merits and defects, however, I am not at the moment concerned. Let it suffice, for present purposes, that trial by jury is our method of answering the question, ‘What happened?’ and that this question must be answered somehow whenever a criminal accusation is made on the one hand and denied on the other.

In the conduct of trial by jury, ‘the advocate,’ as Dr. Johnson said, ‘is not to usurp the functions of the judge; the advocate is to make himself the mouthpiece of him who is accused.’ He is likewise not to usurp the functions of the jury, and to suggest that he ought to do so is, in effect, to propose that the jury system be replaced by some other method of finding facts. When, therefore, the argument is advanced — as I heard it advanced not long ago by a professor in a theological seminary — that a lawyer ought not to defend a prisoner whom ‘all the decent people in the community know to be guilty,’ the criticism really intended is rather of due process of law, as at present constituted in the United States, than of the conduct of any particular lawyer or even of lawyers in general. Since the defendant in the case giving rise to the discussion had in fact been acquitted, the form of the criticism is perhaps to be attributed to righteous indignation at a real or supposed miscarriage of justice. Certainly the substitution of what ‘all the decent people in the community know’ for the verdict of a jury which has at least listened to evidence and had an opportunity of seeing the parties face to face would seem to amount to a reversal of the classical precedent by appealing from Philip sober to Philip drunk. But, in any event, it is contrary to a common sense of fairness to try accused persons more than once for the same offense. If we really regard it as desirable that their legal guilt or innocence be determined by the judgment of public opinion, let us amend our laws accordingly. But until we do so, and until we make a law that a man shall be deemed guilty when his defense does not succeed in convincing his own lawyer, an advocate has no more justification for sitting in judgment on his client’s cause than the members of a jury have for assuming the roles of partisans, or than a judge has for passing upon the credibility of witnesses.

But the assumption by a lawyer of a judicial attitude is not merely bad as a matter of logic. It is bad in practice as well, because a lawyer’s opinion as to guilt or innocence is as fallible as that of anyone else. One of the first criminal cases in which I ever took part was a prosecution in which I was retained by the defendant, who had been indicted for stealing a dog. I asked him what his defense was and he told me that the dog had been given to him by a man whose name he had forgotten. Since the defendant had been in jail awaiting trial for about six weeks and presumably had had ample time to think matters over, this lapse of memory on his part appeared to me exceedingly odd. Moreover, the defense on which he relied is humorously referred to by lawyers as the ‘mysterious stranger’ defense, and there is a tradition that when it is interposed unsuccessfully, as it almost invariably is, the court is accustomed to add a few months to the usual sentence, on the theory that the defendant is not only guilty, but gifted with very poor powers of invention besides. In brief, I did not believe a word of what my client told me, and, being somewhat influenced by that fact as well as very inexperienced, I tried the case badly. For some reason which I have never been able to understand the defendant was acquitted. Perhaps the jury thought that, under the law, he was entitled to a better lawyer.

About six months afterward an accident put me in possession of the true facts of the case. The story told by my client was, as I had suspected, false, but he was, nevertheless, entirely innocent. The dog had been stolen by his sister’s husband, and the defendant, who was unmarried, had come to the conclusion that, with winter coming on, it would be better for him to go to jail than to have his sister and her children deprived of the support and comfort to be expected from his erring brother-in-law.

Perhaps it may fairly be asked whether this incident is better suited to ‘point a moral or adorn a tale,’ and whether a proper answer would not confine it to the latter purpose. Certainly its hero, though he was innocent of being a thief, was an unabashed perjurer, who remains, so far as I know, unrepentant to this very hour. And yet when, as happens from time to time, I see him working at his trade as a stonemason on some building in course of erection and he waves a greeting to me as I pass, I cannot help feeling grateful that the legal conviction of a defendant is not made to depend upon the conscientious conviction of his attorney.

III

That ‘the advocate is to make himself the mouthpiece’ of his client is a figure of speech which must be accepted with certain obvious qualifications, as, for instance, — to borrow an example which has frequently been used by legal writers, — that an advocate must speak for his client within and not without the bounds of the law, and cannot, therefore, justify the use of abusive language toward the opposing party on the theory that his client would be equally abusive if he were permitted to speak.

But, taking the figure at its strongest, we are still a long way from the conclusions of Dr. Paley. According to that authority, a lawyer may assert ‘his belief in the justice of his client’s cause,’ and, though the assertion be a ‘falsehood,’ it is, nevertheless, ‘no lie.’ Any respectable lawyer can preach a simpler and sounder doctrine.² It is his duty to present to the court and jury his client’s version of the facts, as well as every argument and inference which may fairly be drawn in the latter’s favor. It is the duty of the jury to decide the case on the evidence as it comes from the mouths of the witnesses and the law as it comes from the mouth of the trial judge. If, therefore, an advocate makes, by way of argument, an honest statement of his opinion, he nevertheless acts improperly, since his opinion is either relevant, — as it might be on the subject of previous good character, — in which event he ought to have been sworn as a witness, or irrelevant, in which event he ought to be silent. If, on the other hand, his statement is dishonestly made, he is in no different position, either personally or professionally, from any other man who makes dishonest statements.

Perhaps no formal code of ethics can do more than to condemn the expression by an advocate of his personal beliefs about the character and conduct of his client; but to stop here is nevertheless to leave something unsaid. Everyone who has sat for any considerable period of time in a courtroom has listened to the closing speech of at least one lawyer, who, like the player in Hamlet,

Could force his soul so to his own conceit
That from her working all his visage wann’d,
Tears in his eyes, distraction in’s aspect,
A broken voice, and his whole function suiting
With forms to his conceit.

Whatever words may be used by such a pleader, it is obvious that he makes a representation as to the state of his emotions which is intended to incline the scales in his client’s favor by the weight of his own influence. Jury speeches of this kind are, I believe, both less common and less generally effective than they were a half century ago — a result which is, no doubt, to be attributed as much to an improved taste as to a regenerated morality. The degree of conscious deception involved differs, of course, in individual cases, and no hard and fast rule can be laid down.

In this and in every like connection there is, however, one proposition from which no escape can be found. There is no room for an esoteric morality in the legal profession or in any other. Sir Edward Coke’s classic definition of a burglar is ‘ he that by night breaketh and entereth into a mansion house with intent to commit a felony,’ and, accordingly, one indicted for burglary at common law was entitled to an acquittal upon showing that he broke into a mansion house by day instead of by night, or that he entered with the consent of the owner instead of by breaking, or that he broke into a shop instead of a mansion house, or that his original breaking was without intent to commit a felony.

It is beside the point to say that these are technical defenses. The answer is that they are no more technical than the crime itself, and that crime will always be, to a greater or less degree, a technical matter. But sin is not a technical matter, and the conscience is a more sacred tribunal than any court. A righteous lawyer is first of all a righteous man. What is candid and honorable in private life retains those characteristics before a judge and jury, and no principle of ethics is sound which declares a liar to be a less despicable figure in a courtroom than anywhere else.

1. ’It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense.’—Canons of Ethics adopted by the American Bar Association↩
2. ’It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the Justice of his cause.’—Canons of Ethics adopted by the American Bar Association↩