Defending the guilty: lawyer ethics in the movies.

• Author: Sullivan, J. Thomas
• Position: III. The Client's Expectation of "Effective Assistance" through V. Conclusion, with footnotes, p. 615-647

3. The Client's Expectation of "Effective Assistance"

   The film 12 Angry Men tells the story of protracted, heated jury deliberations about the guilt of a young Puerto Rican man accused of murdering his father. (171) The defendant's guilt is debated with cleverness, cynicism, and savage logic. The film is particularly interesting because there is no discussion of the trial itself, or the actions of the prosecutor or defense counsel, included in the drama. (172) The opening includes a monotonous, uninspired reading of the jury instructions by the trial judge and a short, but revealing, view of the scared face of the defendant. (173) The trial is recounted by the jurors in their discussion of what initially appears to be overwhelming evidence of the boy's guilt. Juror #8 (Henry Fonda) initially prompts a closer analysis of the trial when he is the lone juror voting to acquit when the first ballot is taken, and the others then call upon him to explain his doubts about the case. (174) He begins by questioning the reliability of the evidence in the prosecution's case, and he is subsequently aided by other jurors who join, successively, in his skepticism. (175) Juror #8 initially questions the defense lawyer's tactics:

   Juror #8: According to the testimony, the boy looks guilty ... maybe he is. I sat there in court for six days listening while the evidence built up. Everybody sounded so positive, you know, I ... I began to get a peculiar feeling about this trial. I mean, nothing is that positive. There're a lot of questions I'd have liked to ask. I don't know, maybe they wouldn't have meant anything, but ... I began to get the feeling that the defense counsel wasn't conducting a thorough enough cross-examination. I mean, he ... he let too many things go by ... little things that ...

   Juror #10: What little things? Listen, when these fellas don't ask questions it's because they know the answers already and they figure they'll be hurt.

   Juror #8: Maybe. It's also possible for a lawyer to be just plain stupid, isn't it? I mean it's possible. (176)

   Juror #10 (Ed Begley, Sr.) makes a valid point, although perhaps not for the right reason, because able trial counsel are trained to avoid asking questions that will elicit unfavorable or potentially unfavorable answers not known by counsel beforehand. The point is echoed in the following exchange:

   Juror #3: [as Juror #8 sets up an experiment to see if the old man could reach his front door in 15 seconds] What do you mean, you wanna try it? Why didn't his lawyer bring it up if it's so important?

   Juror #5: Well, maybe he just didn't think about it, huh?

   Juror #10: What do you mean didn't think of it? Do you think the man's an idiot or something? It's an obvious thing!

   Juror #5: Did you think of it?

   Juror #10: Listen, smart guy, it don't matter whether I thought of it.

   He didn't bring it up because he knew it would hurt his case. What do you think of that?

   Juror #8: Maybe he didn't bring it up because it would've meant bullying and badgering a helpless old man. You know that doesn't sit very well with a jury; most lawyers avoid it if they can.

   Juror #7: So what kind of a bum is he, then?

   Juror #8: That's what I've been asking, buddy. (177)

   Of particular note is a challenge made by Juror #7 (Jack Warden), who counters Juror #8's retrospective analysis of the evidence in the following exchange:

   Juror #7: Look, the kid had a lawyer, didn't he? He presented his case, not you. How come you got so much to say?

   Juror #5: Look, lawyers aren't infallible, you know.

   Juror #7: Baltimore, please, uh, uh.

   Juror #8: He was court-appointed.

   Juror #7: Now, what's that supposed to mean?

   Juror #8: Well, it could mean a lot of things. Could mean he didn't want the case, or he resented being appointed. It's the kind of case that brings him nothing, no money, no glory, not even much chance of winning. That's not a very promising situation for a young lawyer. He'd really have to believe in his client to put up any kind of a good case and as you pointed out a minute ago, obviously he didn't. (178)

   Juror #8 offers a number of explanations for trial counsel's uninspired performance in representing his client during the trial. (179) But the fact that the jury arrives at its own conclusions about the credibility of the evidence, of course, does not necessarily mean that trial counsel had not already considered alternative explanations and rejected them for sound reasons, as the foregoing exchanges suggest. But Juror #8's explanations are well-founded in both practice and in the common experience of many clients, jurors, and other observers in the courtroom. Even when defense counsel makes a polished and seemingly thoughtful presentation, the performance does not necessarily mean that the case was thoroughly investigated, witnesses skillfully interviewed, or defensive theories and argument soundly assessed. Impressive performance may, for the trial lawyer, simply be the product of innate skill and practice over time, often leading to a mistaken conclusion that her performance actually reflects dedication to the client's case.

   Indeed, a polished and seemingly thoughtful presentation does not necessarily reflect the criminal defense lawyer's personal belief in his client's innocence, although such belief may be important in convincing jurors to acquit. In the military court-martial drama The Caine Mutiny, a Navy JAG, Greenwald (Jose Ferrer), defends an officer, Maryk (Van Johnson), against charges that the officer committed serious misconduct in assuming command of a vessel based on the officer's perception that the commanding officer, Queeg (Humphrey Bogart), was mentally unbalanced and unfit for command. IN" But the officer had been improperly influenced to assume command by the ship's communications officer, Keefer (Fred MacMurray), who had worked to manipulate Maryk by trying to convince him of Queeg's mental incapacity--an incapacity that did not exist. (181) After an acquittal by the military tribunal, the accused and his fellow officers, including Keefer, celebrate, but Greenwald interrupts, disparaging their jubilation. (182) When questioned about his failure to join in the celebration, Greenwald initially explains that he thought the ship's officers had acted improperly. (183) Then, with an obvious reference to Keefer, Greenwald addresses the acquitted Maryk:

   I got a guilty conscience. I defended you, Steve, because I found the wrong man was on trial. So I torpedoed Queeg for you. I had to torpedo him, and I feel sick about it. (184) Greenwald's admission of personal guilt for the successful defense of his client is instructive, precisely because it demonstrates that a skillful lawyer can represent even an individual whom he believes to be guilty, but may later despise his own actions in representing his client effectively. Greenwald's conduct and his retrospection reflect the very difficult duty imposed upon the criminal attorney of putting his client's interests above his own conscience.

   In United States v. Wade, the Supreme Court held that the client's lawyer must be present during the post-indictment lineup conducted by police--a critical stage of the prosecution. (185) In a separate opinion, Justice White wrote about the different duties imposed upon prosecutors in the trials of criminal cases:

   Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. (186) He then contrasted the prosecutor's obligation with that of defense counsel:

   [D]efense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the Slate to its proof, to put the State '.v case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. (187) Greenwald's expression of self-doubt over his actions in representing Maryk effectively and successfully echoes Justice White's description of criminal defense in cases in which the accused's guilt is known or suspected by his lawyer. This is precisely what the constitutional guarantee of effective assistance may entail and it is a complication of criminal defense representation that is reinforced by the ethical rules governing lawyers. Rule 3.1 provides:

   A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of...