Of mice and men.

AuthorPope, Daniel J.
PositionCriminal defense attorneys

1998 was a memorable year in more ways than one. The President of the United States was impeached, the attorney-client privilege became fashionable cocktail conversation, and I turned 50. No more need be written about the impeachment and the subsequent acquittal. I devoted this department to the attorney-client privilege in January of this year, and no one cares about my birthday anymore, including me, although I did receive a great birthday card from my partner, Brigid McGrath. A dog is standing on a rubber raft in the middle of a large pond. The legend reads: "Drifting, even further from the familiar, Skippy's initial misgivings are replaced by an almost giddy sense of possibility."

Drifting, but not dreaming

Recent events have caused those of us who monitor ethics and professionalism cases and opinions to feel a bit like Skippy--we know we are drifting far from the familiar. But unlike Skippy, our initial misgivings are giving way to more serious misgivings. Recent headlines illustrate the point.

The summer 1999 issue of The Professional Lawyer, a publication by the American Bar Association Center for Professional Responsibility and the Standing Committee on Professionalism, contains two fine feature articles, one by San Francisco lawyer Richard Zitrin, "Truth, Justice and the Criminal Defense Lawyer" (page 10), and one by Monroe H. Freedman, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University Law School, "Controversial No More: The Perjury Trilemma Revisited" (page 2).

Zitrin, who also teaches legal ethics at both U.C. Hastings and at the University of San Francisco, begins:

The duty of the criminal defense lawyer has been, and continues to be, to do one's level best to see that guilty clients are acquitted. Yes, I am stating it badly for effect, but also to comport with reality. The first reality--most criminal defendants--even most who go to trial--are, in truth, guilty, at least of something, if not the crime charged. No one, even the most zealous prosecutor, wants to see the truly innocent convicted. The second reality--despite lofty statements about establishing "historical truth" or searching for absolute Truth, seeking truth is not and has not been the purpose of the criminal trial for the last 150 years. Nor should it be. Criminal trials are not primarily about truth, but they can and should be about justice.(1) Until recently, Americans have had a love affair with criminal defense lawyers. The names Abraham Lincoln, Clarence Darrow, Gary Spence and F. Lee Bailey invoke images not unlike the movie hero, Atticus Finch, or the TV hero, Perry Mason. As Zitrin puts it, these people became folk heroes to many because they appealed to America's quintessential love of the lone gunslinger taking on the forces of evil.

Until recently, because the celebrated criminal trials of the Menendez brothers, O.J. Simpson, and Timothy McVeigh have cast criminal defense lawyers in a different light. As Zitrin accurately points out, the image most people have today of the criminal justice system was echoed by Fred Goldman time and time again on TV regarding the Simpson criminal acquittal that "this is not justice."

Seeking the truth not true

Zitrin teaches an orientation seminar on ethics and morality to all incoming law students at U.S.F. He points out that most students demur when asked whether a lawyer's job is to seek the truth. As he notes, when representing a criminal defendant, they probably are right, and he quotes no less an authority than Justice Bryan White, writing in United States v. Wade:

[D]efense counsel has no ... obligation to ascertain or present the truth. Our system assigns him a different mission. He must ... defend his client whether he is innocent or guilty.... If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or...

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