The Criminal Defense Lawyer,
Liberty’s Last Champion

Alan Silber writes about how he views defense lawyers, their responsibility's,
and their place in our system.

Criminal defense lawyers and organizations tend to romanticize our role in life. The National Association of Criminal Defense Lawyers's slogan proclaims we are "Liberties Last Champion". But the popular view is much darker -- and is shared all too often by those in power, who should know better. We are seen as a luxury consumer item for criminals, as concillere to organized crime, as co-conspirators with drug distributors, as money-launderers, or simply as an aide-de-camp to criminals. When our lobbyist first registered in the legislature, one senator's initial comment was, "Now there's even a lobbyist for the criminals."

In order to combat that popular perception, we must be self-conscious and understand ourselves -- as criminal defense lawyers and as an organization. It helps to view our role in the context of modern history, of the philosophy which spawned our revolution, and of the new role that revolution assigned to the criminal justice system.

When the great nation states of Europe were fused from duchys, principalities and tribes, the need for order outweighed the benefits of liberty. The fusing process required fierce allegiance to the unifying government. Sovereignty and autonomy resided in the crown.

Centuries of bitter experience with the sovereign's unlimited power fueled the humanistic philosophy of the Enlightenment, which informed our own revolution and its ensuing new form of government. In philosophy and government we celebrated the worth and autonomy of the individual, the concept of equality, and the value of pluralism and choice.

Our republican experiment -- embodied in our Constitution -- created a revolutionary criminal justice system, where the fundamental rights of the citizenry would be vindicated -- by lawyers defending the accused, by lawyers who -- like a free press -- would function as a watchdog against encroachment on our freedoms by the sovereign.

The current view of the criminal justice system threatens the very fundamentals of the framer's design. Chief Justice Rhenquist has consistently viewed the function of that system as simply to convict and punish consistently enough to deter crime and keep order, while still acquitting the innocent. Hence, this Court has had no qualm about eviscerating those fundamental rights which delineate a free society, when they are collateral to guilt and innocence.

Thus, under Rhenquistian jurisprudence, we defence lawyers are the enemy. Our very essence opposes swift consistent punishment. Our motions to dismiss, suppress, discover, sever or to sentence creatively undermine the effectiveness of the criminal justice system. While the Rhenquist view has surface appeal, it is fundamentally counter to the very vitals of our revolution. It eliminates a prime function of the Criminal Justice System as watchdog.

A May 11, 1992 New York Times article on the new Russian Justice System put the point. Hoped-for freedoms were to appear in a new justice system which replaced the old repressive Soviet Criminal System. A 97% conviction rate was cited as evidence that new freedoms were largely illusory. The article pointed to an absence of aggressive criminal defense lawyers as a primary reason that fundamental rights had not been realized. The article emphasized that there was no tradition of lawyers who opposed the state, and graphicly made the connection between the absence of an independent, aggressive and competent criminal defense bar and the absence of fundamental freedoms. The vision of Our Founders continues to be vindicated.

So, if it is understood that the criminal justice system was designed for the defense bar to be the first line of defense against tyranny, then no one will see us as "the enemy". We can and should be proud of our role as defense lawyers. We are enshrined. A constitutional component. We do far more than protect the innocent. We are entrusted with a very special task -- defending our nation's freedom and preserving our revolution, in spite of the well-meaning but uninformed, in spite of expedient politicians, and in spite of evil men who covet order and the status quo at the expense of liberty, equality and pluralism.

So here is a secret I have come to share with you. The romantic view we have of ourselves is true. We are liberty's last champion. And, liberty's last champion -- we have special responsibilities. We will meet those responsibilities with the help and support of all of us how practice this craft.

Our collective experience has given us a unique knowledge and insight. We must use our advocates' skill in the legislature, as amicus, on committees, in public debate and private discourse. We exist as an organization to fulfill our special responsibility as that force for freedom.

Finally, the last thing I want to share with you, may be the best. With our special responsibility comes special rewards. We earn, each day, the satisfaction that our lives and efforts are bent to vindicate the noblest of human principles, to preserve the most precious of human ideals and to protect the best of the human spirit.