Monthly Archives: December 2011

Coming Soon: Legal Fiction!

I’m starting a short story series entitled Legal Fiction. Yes, it’s a pun but I’m a sucker for those. This site is in want of the light-hearted so I’ve decided to add a little creative writing each month. I have no idea how it’ll go and I’m not sure what it’ll be about (except that it will be related to the law). That said, the first “chapter” or story in Legal Fiction will be released in January 2012. Exact date TBD. Stay tuned!

-Zachary Cloud

Interested In Going to Law School? Check Out My Guest Post

[UPDATE: The site where my guest post originally appeared is no longer active.]

Just a shameless plug here. I was asked to write a piece for WhatNowBlog.com, which is a site about “life after college.” You can check out my tips for those considering a career in law by reading my guest post.

-Zachary Cloud

Habeas in the Terrorism Context: A Comparison of UK and US Law

Foolishly, I’m leaving my comfort zone here. I’m rather familiar with habeas in the context of collateral attacks under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). I’ve spent less time familiarizing myself with the use of habeas by detainees and enemy combatants. Fortunately, it’s a nascent field so there’s not as much to know in the first instance. As a caveat, I neither expect nor intend to be exhaustive in this post. Instead, I only seek to bring up the major relevant law then comment on the legal landscape.

Well, now’s as good as any time to ameliorate my disparity of knowledge. If you’re wondering why the sudden interest, it’s because of a shiny new judgment on habeas law from the UK. As the BBC reported yesterday, the Court of Appeal (Civil division) directed “that a writ of habeas corpus be issued[ ]” to test the legality of Yunus Rahmatullah’s detention. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2011] EWCA Civ 1540, [54]. The High Court (Administrative division) had refused to issue the writ. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2011] EWHC 2008, [34] (Admin). So what’s going on here?

I. BACKGROUND FACTS

The facts of this matter are well-established in the High Court opinion and incorporated into the Court of Appeal’s opinion. The basics are these: Yunus was captured by British forces in 2003 and handed over to American troops as part of a “Memorandum of Understanding.” In 2010, Yunus’ detention was reviewed by the U.S. Detainee Review Board. That board found that Yunus is no longer a security threat. However, he still remains in an American detainee prison – specifically the one in Bagram, Afghanistan.

Yunus’ cousin learned in May 2010 about the detention and filed an application for a writ of habeas corpus in the UK. As far as I have been able to tell, Yunus’ cousin did not petition the D.C. Circuit in the US under 28 U.S.C. § 2241. I bring this up now but table it for some discussion later.

II. THE DIVISIONAL COURT RULING

Laws, LJ, issued a thoughtful opinion refusing to grant the writ. I found his discussion of habeas precedent especially illuminating. He noted that “[t]he common law . . . does not confine the benefit of the writ to British subjects.” [2011] EWHC 2008, [12]. Pay attention to that language; we’ll be coming back to it in a bit. Furthermore, he points out that habeas is not limited to merely remedying unlawful detention but also allows a court to inquire into the legality of the detention. In other words, the writ may be issued in order “to investigate the legality of a detainee’s confinement . . . .” Id. at [13].

Did you catch that? A writ may issue merely to investigate the legality of detention; issuance needn’t be reserved for instances where detention has already been shown unlawful. Wouldn’t it be nice if American habeas law followed this approach? I, for one, would quite like that.

Though Laws, LJ had some insightful words about habeas, he ultimately denied issuance of the writ on the grounds that the United Kingdom lacks sufficient control over Yunus to direct his release / delivery. See id. at [29]. This logic was based on Laws’ notion that “[t]he [Memoranda of Understanding] did not create legally binding rights or obligations; and even if they had, they would have sounded on the international plane only.” Id. at [33].

III. THE RECENT COURT OF APPEAL RULING

On December 14, the Court of Appeal went the other way on the issue of control. The rationale for finding that the UK could exhibit control turns, somewhat oddly, on the “sufficient uncertainty” of the matter. See [2011] EWCA Civ 1540, [33]. The argument goes that because the Memorandum of Understanding allows the UK to demand production of the detainees it hands over to the US, the government “is . . . entitled either to demand [Yunus’] release or to demand his return to UK custody . . . .” Id. at [34].

The reasons that the UK would be entitled to demand Yunus be delivered turns on the Geneva Convention. Both the Divisional Court and Court of Appeal discuss briefly the Geneva Convention and how Yunus’ continued detention probably violates it. As a result, the Court of Appeal noted that “there is a substantial case for saying that the UK Government is under an international legal obligation to demand the return of [Yunus], and the US Government is bound to accede to such a request.” Id. at [35].

And so, because the court found that the UK government could demand production of Yunus, that was sufficient to require them to make such an attempt. As the BBC article I referenced at the beginning of this post notes, this decision will probably be appealed to the United Kingdom Supreme Court.

IV. HABEAS LAW & DETAINEES IN AMERICA

I find so much about these two opinions fascinating but I think it’s worthwhile to focus on the detainee aspect. The “war on terror” has caused habeas to be employed in an original way. In America, the most common use of habeas corpus is by prisoners attempting to attack their convictions. We call these petitions “collateral attacks.” As I noted at the outset of this post, collateral attacks are governed by AEDPA, which is a procedural nightmare. For better or worse I’m developing a healthy understanding of the area.

Things change in the terrorism context. This isn’t surprising – it wasn’t until after 9/11 that the United States began indefinitely holding “enemy combatants” at Gitmo and abroad. Accordingly, there has only been a decade of development in this legal area.

For detainees challenging their detention through the use of US habeas law, the problem has always been one of jurisdiction. How do you even get in the door when the US Government has placed you somewhere abroad that (arguably) cannot be touched by a domestic court? This problem arose in earnest with Rasul v. Bush, 542 U.S. 466 (2004) and reached a plateau in Boumediene v. Bush, 553 U.S. 723 (2008). In between, two other notable cases also came along: Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

I don’t think it’d be useful to go through these decisions in intricate detail. However, a swift summary of this line might be useful. In Rasul, the Court found that the federal courts had jurisdiction under § 2241 to hear habeas petitions even if the petitioners were in Gitmo. In doing this, the Court rejected the notion that Johnson v. Eisentrager controlled. After this came Hamdi. It’s a case that has plenty of interesting things to say but that I mention for only one point: US citizens have a due process right to “meaningful opportunity” to contest his or her detention. This right naturally trumps any Congressional attempt to strip the judiciary of its habeas jurisdiction. After Hamdi, Congress passed the Detainee Treatment Act of 2005, which the Court picked away at in Hamdan.

Then we get to Boumediene, which is still the controlling law. And the Court was busy here. It once again held that Congress had unconstitutionally stripped the federal courts of their jurisdiction (through the 2005 DTA). But the Court went further, explicitly stating that Gitmo detainees have a right to petition under habeas. Thus, the Court flatly rejected the notion that Guantanamo Bay was an “untouchable” area outside of federal court jurisdiction. Lastly, the Court rejected the notion that the Combatant Status Review Tribunals (“CSRT”) established by the Department of Defense could act as a sufficient substitute of habeas to avoid a Suspension Clause problem.

Here, I’ll digress briefly. What do I mean by a Suspension Clause problem? Well, the right to habeas in the US has never been clearly defined from a constitutional standpoint. It is explicitly mentioned in Article I, § 9 of the Constitution. Clause 2 states that Congress is not allowed to suspend the writ of habeas corpus except in cases of rebellion or invasion. Does this presume habeas’ existence? If so, what precisely does it entail? As Lord Blackstone tells us, there were many variants of habeas corpus at common law. The point I seek to make is that it has never been entirely clear—nor is it now—what precisely the Constitution mandates. Nor is it clear that it would be unlawful to do away with habeas entirely. The Suspension Clause, after all, only speaks to a suspension and not to a full dismantling. The bottom line: some things may or may not be sufficient “alternatives” to habeas corpus. Although the CSRTs didn’t cut it, other mechanisms have (e.g. the REAL ID act).

Ok, so what do we know? We know that a detainee can petition for his release through habeas corpus under § 2241. That’s about it, though. It’s far from clear that a non-citizen detainee would ever be able to get any further. Why, you ask? Because we see, at this juncture, a departure from how UK and US habeas law operates. As I pointed out earlier, a British court may issue a writ of habeas merely to investigate the legality of detention. In the US, however, the writ only issues after it has already been determined that detention is indeed unlawful. This raises the huge hurdle that any non-citizen detainee must overcome: proving his detention is unlawful. There’s very little reason to suggest that such detainees have constitutional rights. Without such rights, there is no real leg for a claimant to stand on. I would expect the argument to focus on a violation of Geneva Convention rights but I haven’t been following the detainee litigation closely enough to know.

V. HABEAS LAW & DETAINEES IN BRITAIN

Are you starting to see the challenges that a prisoner faces by filing in district court? It strikes me that those who have access to an alternative route (here, habeas under UK law) are probably going to take that route instead of the US path.

The UK, of course, has no base like Gitmo nor—to my knowledge—any equivalent practice of indefinitely detaining prisoners. I think the closest they’ve come is handing over captured persons to the US. Even if the UK wanted to detain indefinitely, I believe that the European Convention on Human Rights (and likely the Geneva Convention) would prevent such detainment. The result is that habeas law (or an alternative mechanism) hasn’t developed in quite the same in Britain. And remember, habeas in the UK remains (to my knowledge) entirely common-law. Thus, we know from the outset that its contours will be less well-defined than if we were working with a statutory regime.

Yunus’ case (which I discussed above) somewhat highlights the path that British law has taken. Before his case, there was Abbasi and al-Rawi.

In R (Abbasi) and Anor v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2002] EWCA Civ 1598, the mother of a British national detained at Gitmo brought an action to compel the Foreign Office to take some sort of action on her son’s behalf. The Court of Appeal swiftly refused, noting that there was no legal duty to take diplomatic action. See id. at [107]. It’s worth noting that Abbasi had also filed a petition for habeas corpus in the US. The court’s opinion also has a discussion of the American legal development on detainees up to that point in time. See [9]-[21].

Now to al-Rawi. This is a case that is still being litigated in some respects. But we’ll be focusing on the Court of Appeal decision in R (al-Rawi) & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2006] EWCA Civ 1279. There, the Court of Appeal considered essentially the same prayer for relief under new arguments. The results were the same, however. See id. at [144].

Yunus Rahmatullah’s case breaks from these prior two cases. Of course, there are excellent reasons why it does. First, there is an argument in Yunus’ case that the UK Government still has ability to exercise control over him. The Court of Appeal says yes, though the Divisional court has said no. In Abbasi and al-Rawi, there was no such “control.” Moreover, Yunus’ cousin sought a writ of habeas corpus whereas neither Abbasi nor al-Rawi did. So, while the Court of Appeal takes a new direction, it’s far from clear that this is a “break” in precedent. And moreover, it’s far from clear that this will be the end of the matter. The UK has indicated its plan to appeal to the UK Supreme Court so things may change yet again.

VI. SOME FINAL THOUGHTS

The intersection of terrorism and habeas is uncharted territory. As the Rasul to Boumediene line in US law shows, indefinite detention of enemy combatants has tested where the limits of habeas are located. Is there jurisdiction over non-citizens? If so, is it geographic or is it more broad? Even if there is jurisdiction, what constitutes unlawful / illegal detention that could be remedied by the Great Writ?

The UK law also shows struggle with jurisdiction – but in a different way. In Yunus’ case, both the Divisional court and Court of Appeal cited older cases (one from the late 19th century and one from the early 20th century) dealing with issues of “control” over the prisoner. There was no suggestion that Yunus’ lack of British nationality and his custody in a foreign country would defeat jurisdiction. That is, the mere fact that British authorities had captured Yunus was enough to make them answerable for the legality of his detention. However, jurisdictional issues creep up with respect to the fact that the UK authorities do not clearly have custody currently.

What a fascinating landscape. The issue of control was never a problem for detainees seeking habeas in America because it’s so patently obvious that the US has control. The problem was how far a court’s authority could extend. Could a court in DC command authorities on leased land in Cuba to do something? The answer, as we know from Boumediene, was ultimately yes. However, what’s noteworthy is that it was a difficult question to answer. Indeed, it led to a 5 to 4 split in the Supreme Court. But this same problem was of little moment to British courts. Why?

Perhaps there are several very defensible answers. First of all, we of course must recognize that habeas in the US and UK have differed in some respects for a while. In the UK, the writ still maintains its place as a proper common law writ that lacks an intricately defined structure. There is no complicated regime of legislation that governs when habeas may be issued. Accordingly, judges are less bound up in considerations of what limits have been placed on them by a political body who wrote the law.

Furthermore, the UK does not have separate “federal” and “state” systems. This is important not because detainees are a matter for the states (it is, indeed, a federal matter). Rather, it recognizes that habeas in America has developed in the context of “federalism” concerns about the reach of federal power. Indeed, the Constitution lists rather explicitly what each political branch can do and in theory (though arguably less true in practice) the federal government does not have “general police powers” akin to what the states have. The result is less freedom to craft the law.

Finally, there is a pragmatic explanation for why UK habeas law is untroubled by the geographical jurisdiction question. Telling the UK government to produce a prisoner does not amount to telling an active military entity how to do its job. In other words, issuing a writ in the British system does not create the same power struggle between judiciary and executive as we have seen in the US. The cases up to and through Boumediene showed clear examples of a power struggle between the Executive branch (don’t tell us how to fight this war) and the Judiciary (don’t tell try to limit our authority by stripping jurisdiction). We can see that asking the UK Secretary for Foreign affairs to get a prison certainly creates a less immediate tension between governing authorities.

That’s what makes the Court of Appeal’s decision in Rahmatullah so fun for a habeas fan like me. We can only expect as time goes on and more habeas appeals are brought that we’ll start to see habeas become more fleshed out in UK law. I for one can’t wait to see how it develops and in what ways it tracks or diverges from American law.

-Zachary Cloud

Even MORE Habeas News Today!

We have a trifecta, ladies and gentlemen. In October, I wrote about United States v. Pleau, which deals with a rather rare form of habeas: ad prosequendum. For all the details, read my post. The quick version is this:

Pleau is in Rhode Island custody (life imprisonment, in fact) for murder. The feds want to prosecute him for this murder under charges that might expose him to the federal death penalty. Rhode Island’s governor refused to give the feds custody when it was requested through the Interstate Act on Detainers (“IAD”). The feds, having been snubbed, filed a writ of habeas corpus under 28 U.S.C. § 2241(c)(5) <—— I know, you don’t see that one very often, do you? The First Circuit panel held 2 to 1 that “once the government has elected to seek custody of a state prisoner under the IAD, it is bound by that decision. Any subsequent ad prosequendum writ is to be considered a written request for temporary custody under the IAD . . . .”

Well, the First Circuit is going to rehear the case en banc. As the Providence Journal reports, the full First Circuit will hear the case on April 4, 2012. I’ll be eager to see how the en banc court handles the matter. I am not at all surprised the court agreed to rehear the matter…indeed, I predicted it when I posted about the panel decision. And as I also noted in that post, this rehearing may not be the end. SCOTUS may take the case up, though I’m less sure of that one. I’m not sure that there’s a sufficient split of authority on the matter in circuit courts to peak SCOTUS’ interest. Time will tell.

When there’s more to report, I’ll bring it to you!

-Zachary Cloud

While US Tightens Habeas, UK Grants It!

Not five minutes after I posted an update on habeas under the Anti-Terrorism and Effective Death Penalty Act of 1996, I see this fascinating story on the BBC about a judgment from the Court of Appeal directing the UK to either release Yunus Rahmatullah or explain why it is unable to do so. The UK has said that it plans to appeal to the UKSC.

I’ll work up a full post on this later today. There’s a lot to discuss that the news article only touches on or fails to discuss.

-Zachary Cloud

Habeas Corpus Updates

Now that I have some free time, I thought I’d throw up a quick post summarizing some of the recent goings-on in habeas law.

Since the beginning of the October Term 2011, the US Supreme Court has handed down a number of opinions dealing with AEDPA. Specifically, Hardy v. Cross, Greene v. Fisher, Bobby v. Dixon, and Cavazos v. Smith.

All but one (Greene) were summary reversals by the Court writing per curiam. Now, let me state up front that we don’t normally expect to find any change in precedent with such summary reversals but it happens sometimes anyway. So, I think it’s worthwhile to take a peak and see if anything is hidden in these opinions that might have some value for us down the road.

Let’s start with Smith, a case in which the 9th Circuit granted habeas based because “there was no evidence to permit an expert conclusion one way or the other . . . .” Slip Op. at 6 (internal quotation marks omitted). I bet you didn’t think a mere sufficiency argument would ever make it did ya? Well it was short-lived. The Supreme Court called the 9th Circuit’s conclusion “plainly wrong[ ]” and spent a bit of time explaining the standard for sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979).

Two things stand out about Smith. First, it has relatively little focus on the § 2254(d) deference that federal courts owe to state court adjudications. Rather, the focus is more on the underlying substantive reasons for why the writ shouldn’t have issued (i.e., the 9th Circuit got Jackson v. Virginia wrong).

The second thing that stands out is Justice Ginsburg’s dissent, which Justices Breyer and Sotomayor joined. More than just suggesting that AEDPA could allow the 9th Circuit to act as it did, Justice Ginsburg questions the Supreme Court’s decision to even decide: “By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family. Is this Court’s intervention really necessary? Our routine practice counsels no.” Slip op. at 2 (Ginsburg, J. dissenting). And further: “This Court . . . has no law-clarifying role to play.” Id. at 3.

Okay, so Smith was pretty fact specific – not really much to learn with respect to the Court’s position on § 2254(d). What about Dixon and Cross?

In Dixon, the Court summarily reversed a habeas grant from the 6th Circuit and pulled some Harrington language that I have to suspect is now the Court’s accepted understanding of § 2254(d)(1). That language? “[A petitioner] must show that the state court’s ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. ____, ____ (2011) (emphasis added). Wow! Doesn’t that stretch (d)(1) a bit beyond what it says? I think so. Nevertheless, Dixon seems to suggest that this language is now how the Court understands (d)(1).

The Court in Dixon went on to criticize the 6th Circuit for its interpretation of Miranda & progeny. Primarily, the reversal flowed from the Court’s belief that the 6th Circuit misinterpreted precedent, not that it applied improper deference.

Now, in Cross we turn from Fifth Amendment considerations to Sixth Amendment considerations. Specifically, we’re talking Confrontation Clause. This is actually a pretty interesting case on its merits for those who have an interest in the Confrontation Clause – especially noteworthy was the absence of any citation to Crawford v. Washington. Instead, we see reliance on Ohio v. Roberts. Signaling much? Especially after listening to the oral arguments in Williams v. Illinois you get the impression that Justice Breyer wants to get the Court back to a per-Crawford approach to the Confrontation Clause.

But we’re trying to talk about habeas and I’m getting a bit off track. The Court reversed the 7th Circuit. It’s discussion of § 2254(d) seemed almost like an afterthought. At the penultimate paragraph, the Court wrote: “And, more to the point, the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court” to over turn a state court decision unless it was unreasonable.

Are you with me? Neither Smith nor Cross have a whole lot to say about habeas law. I think Dixon indicates a shift towards even more deference than the plain text of § 2254(d)(1) demands.

Now we come to Greene. This case is a bit of a complicated one though its outcome is not surprising in light of Cullen v. Pinholster. The question at issue in Greene was “whether ‘clearly established Federal law’ includes decisions of [the Supreme Court] that are announced after the last adjudication of the merits in state court but before the defendant’s conviction becomes final.” Slip op. at 1.

I’ll tell you now, the answer to that question is ‘no.’ Justice Scalia disposed of the matter in a swift, nine-page opinion that relied heavily on Pinholster language. Particularly, the Court pointed to the comment that AEDPA’s “backward-looking language requires an examination of the state-court decision at the time it was made.” Slip op. at 4 (quoting Cullen v. Pinholster, 563 U.S. ____, ____ (2011)). Thus, a Supreme Court decision that comes down between the last adjudication and the date when the conviction becomes final (aka the twilight zone) is not to be considered “clearly established” for § 2254(d)(1) purposes.

Greene also has some discussion of Teague…one of my most hated aspects of habeas law. Teague always seems to rear its ugly head at the most inconvenient times. But I digress… The Court re-affirmed that § 2254(d) did not incorporate Teague when Congress passed AEDPA. Rather, the two are distinct mechanisms. However, the Court didn’t go any farther. There’s an open question about whether § 2254(d)(1) would bar a claim based on “a decision that came down after the last state-court adjudication on the merits, but fell within one of the exceptions recognized in Teague . . . .”  Slip op. at 5. The Court specifically notes that it’s not deciding that question in Greene.

Did you catch that? We still are left with an interesting hypothetical, aren’t we? What if a watershed decision of criminal procedure comes down after the last state court adjudication…a decision that Teague wouldn’t bar? Perhaps we’ll see a case on that in the future but as for right now, there is no decisive answer from the Court.

Lastly, let me just point out several cases which are pending in the Court right now: Maples v. Thomas, Howes v. Fields, Martinez v. Ryan, Lafler v. Cooper, and Gonzalez v. Thaler. For more information on these, see my post here.

The long and short of the opinions we have so far is that the Supreme Court is not only interested in tightening habeas law but also in policing the lower courts’ use of it. The fact that we even have three summary reversals says something. After all, as Justice Ginsburg pointed out in her Smith dissent, these are cases that need intervention. The Supreme Court is not in the business of error correction, yet that’s precisely what it’s doing with habeas. Each time a circuit court issues a writ, the Supreme Court steps in and reverses. It shows what I think can only be described as a hostility toward the writ. What, if anything, can be done about this hostility is a hard question to answer. Personally, I’d love to scrap AEDPA but I doubt that’ll happen anytime soon.

I won’t rant further. When some of the pending decisions I noted above come down, I’ll re-examine where we’re at. Hopefully the picture will be prettier then.

-Zachary Cloud

Why I Want To Be A Criminal Defense Attorney

It happened again. Tonight, actually. I had someone ask me why I wanted to work for criminals. It’s not the first time I’ve had to explain my reasoning but it is the first time I have been motivated to dedicate a blog post to the matter. Without further ado, some informal thoughts on why I want to be a criminal defense attorney.

I. THE ADVERSARY SYSTEM

At the outset, you should know that I am only really interested in criminal law. Other types of law are mostly uninteresting to me (though I admit a strange, nerdy love of property law).

Now, to understand where I come from, you need to understand a little bit about the American justice system. Like our brethren across the pond, we have an adversarial justice system. What this means is that legal matters are litigated by putting party A against party B and letting a jury of lay people decide if the complaining party proved its case. On the criminal side, that means that the government has to prove beyond a reasonable doubt that the accused actually committed the crime. The defendant doesn’t have to prove a thing…(s)he certainly doesn’t have to prove innocence.

Why?

Well think of the consequences of guilt. A person found guilty is branded a convict, and typically deprived of his/her liberty. Those are the direct consequences but there are collateral ones too. A father put in jail won’t be at home to support his family. He’ll lose any job he had and it’ll be all the more difficult to get one when he returns to society. People will brand him a convict and his reputation will forever be affected. In short, there is a lot at stake. Doesn’t it make sense to put heavy proof requirements on the government before subjecting an accused to such punishments?

I think it does. I think that when we give the State power to ruin someone’s life and reputation, we should make them earn that power. I think we should keep the government honest. You wanna convict somebody for a crime, you gotta earn that conviction.

This line of thinking seems only natural in other aspects of life, doesn’t it? Consider politics. When a politician runs un-opposed, doesn’t it feel wrong? We want someone to oppose them. After all, a victory in a game without an opponent is hollow.

So let’s extend the thinking. Remember that saying “pick on someone your own size”? That too matters in the criminal system. Imagine a system where you’re allowed to defend yourself but only nominally. You’re given far too little money to actually mount a successful defense. Is this any better than being denied a defense entirely? It’s akin to an adult beating up a five year old. It’s a patently unfair fight. How could you expect the five year old to win? You can’t. So what’s the significance of the fight in the first place?

My point to all of this is that a defense attorney has not only a proper but also an important role in the American justice system. If you take away the defense attorney, you make the process of convicting someone hollow. I, for one, would like to know that when a person goes to jail it’s not because of a flawed system but because he actually committed the crime.

II. BUT HOW CAN YOU DEFEND THE GUILTY??

Truthfully, most people acknowledge what I have stated above. They realize that a meaningful justice system allows both parties a fair fight. But it doesn’t matter to them. After all, I just said it takes both sides so why not work for the prosecution? They don’t understand how I could represent someone I knew to be guilty. Systemic concerns surely aren’t applicable any more right? We’re no longer faced with the concern of wrongful conviction, so how can I do it?

Where to begin…

First of all, if there’s going to be a determination of guilt, would you rather one defense attorney do it or twelve jurors? Maybe I learn in the course of representing my client that he’s guilty. Wouldn’t you rather the jury be the final voice on that, not me? I don’t actually think most people want to see a system where an attorney can abandon his or her client upon learning the status of the client’s guilt. And do note, I won’t know up front if my client is guilty. I’d never take the police’s word for it because of course they think he’s guilty. No, my investigation team will do an independent investigation. As a result, it may be several months into the representation before I would know that a client is guilty. You’d really support the idea of abandoning a client halfway through the representation?

Second, representing a client constitutes so much more than just making a guilt or innocence determination. Plenty of defense attorneys negotiate plea deals for their clients each business day. That’s right, a defense attorney is advising his or her client to plead guilty. We recognize that many cases will lose at trial because evidence of guilt is very strong. From this point, our job turns to ensuring that our client receives a fair sentence. This piece of the puzzle is often overlooked by non-lawyers but it’s a huge piece to us in the profession. Even the guilty deserve sentences that are just and fit the crime.

Third, my representation of a guilty defendant does not constitute an endorsement of his behavior or a desire to keep criminals on the street. This particular concept seems especially hard for some people to grasp but I don’t know why. We get this concept in other aspects of American life. “I don’t agree with what you’re saying but I’ll die defending your right to say it” comes to mind. I don’t have to like my clients in order to stand up for their rights to have a fair trial and/or receive a fair punishment.

Fourth, a refusal to defend the guilty connotes a belief in your own righteousness. It connotes the belief that you are better than the man you are asked to defend. I have committed no crime but that does not mean I am free from sin. No man is. I am no better than the defendant I represent though our sins may differ in nature and severity. It is not my place to judge. Judgment is the Lord’s alone.

Fifth, most criminals are not inherently evil. Most are fallible humans who make mistakes. Often times, these mistakes are the result of poverty, addiction, and mental health issues. Who is looking out for these people? The prosecutor trying to put them in prison? No. On the contrary, it is a defendant’s attorney who is in the best position to assist in getting the needed help. The holistic approach to defense is one I believe strongly in. If we as defense attorneys can help address the problems our clients have at the individual level, we can reduce crime on an overall level.

Sixth, because I want the opportunity to protect the innocent as well. This particular point goes to those who say “well sure somebody needs to defend criminal defendants but why you?” To start, we can see that it’s a dubious logic to say, “let someone else do it.” Either you have to turn around to that guy and ask him why he’s representing criminal suspects or you have to believe that some people are less morally blameworthy for representing the guilty. Both approaches are wholly unsupportable.

So why do I pick the defense side? Because the innocent clients make it all worthwhile. And because the government doesn’t need any more help. It has plenty of money and legal mechanisms in its favor. The criminal case is almost always a David v. Goliath story and I like the underdog. Even farther still, I feel uncomfortable with the idea of actively trying to harm someone. The prosecution has to bring a case with the intent to harm a defendant (generally through imprisonment). I would rather be responsible for putting a guilty man on the streets than sending an innocent man to jail or giving a guilty man an unjust prison sentence. I can live with doing the first, I can’t with doing the second.

III. I GET ALL THAT, BUT ISN’T THE PAY TERRIBLE???

Yes. Well, compared to other legal fields it certainly is. For example, in Massachusetts, the rate for defending most matters that you’d bill to CPCS is $50/hour. Not very much. Of course, in private practice, you can charge whatever the market (and the bar association) will let you get away with but most criminals are not able to afford an attorney. In fact, 75%-90% of criminal suspects are indigent and require a public defender / appointed counsel.

Compare this hourly rate with what a first-year associate at a firm like DLA Piper would make. With a starting salary of $160,000 and a yearly billable hour target of somewhere a little north of 2,000 hours, that puts us right around $80/hour.

Now, working for the district attorney prosecuting cases is also low-paying. It’s generally comparable to defense work. Bottom line: you don’t get into criminal law to make money, period.

But what it lacks in monetary value it makes up for in both importance and excitement. Criminal law, unlike corporate law, is never boring. Nor is it ever low-risk. You have an individual’s life in your hands. Make a mistake and you could ruin it. I find that importance and that responsibility thrilling. It’s what got me interested and has held my attention. One thing I refuse to do is a job that bores me. I have the great fortune of knowing what type of work I love and I wouldn’t trade it for the corporate world, even if I was offered a $1,000/hour salary.

IV. CONCLUSION

It’d be rare to find a criminal defense attorney who wants to encourage criminal behavior. The vast majority of criminal defense attorneys believe in the concept “innocent until proven guilty” and have dedicated their careers to protecting the notion. The State has enormous power to ruin a person’s life. But if it wins its case, it should be done “fair and square.” Let a jury of twelve peers decide and make sure the defendant gets a meaningful defense before that decision is rendered.

Moreover, most criminal defense attorneys realize that the status of being a “criminal” or being “guilty” is not black and white. Plenty of guilty defendants receive unjust sentences. Plenty of guilty defendants need attention such as drug treatment. The job of being a successful advocate is not only about trying to save the innocent, it’s also about ensuring the guilty are treated fairly.

I believe in all of this. I believe in holding the system accountable. I believe that most defendants’ status as innocent or guilty is an oversimplification. I believe that working as a defense attorney offers a lot of opportunity to help get treatment to those who need it. And I believe that it’s much easier to sleep at night knowing that I did no harm. We live in a system that claims punishment is about rehabilitation and deterrence when it’s actually about retribution and retaliation. Well I don’t believe in retaliation, I believe in turning the other cheek. And I can’t bring myself to work for the side that seeks to retaliate. I don’t have the stomach for it or the belief system to support it. That’s why I want to be a criminal defense attorney.

-Zachary Cloud