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In defense of defense attorneys

As a criminal defense attorney, I sometimes have to defend the role I play in representing people accused of heinous crimes. Rapists, murderers and thieves — why defend these alleged miscreants? Why not just lock them up in prison and throw away the key? Or summarily execute them without a trial?

The simple answer is that, as a member of the bar, I took an oath to defend the Constitution of the United States. The Sixth Amendment of our Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” In our system, the accused in a criminal proceeding is considered innocent until proven guilty. The role of the defense attorney is vital in preserving each and every American citizen’s guarantee of a fair trial and equal protection under the law. That means even those accused of — or even guilty of — despicable acts.

But if you believe they are guilty, why not refuse to represent them? Let someone else do it. The more complicated answer is that lawyers — and particularly criminal defense attorneys — are the guardians of independent thinking. The defense attorney must put aside personal biases, popular attitudes or beliefs, the clamoring of the media, and defend the accused to the best of his or her ability based solely on the facts in evidence and on the law. In representing each and every client, the defense attorney must guard assiduously to keep an open mind.

“The first thing we must do is kill all the lawyers,” uttered Dick the butcher, Shakespeare’s plotter of treachery in “Henry VI.” This famous line is often used to disparage the role lawyers play in our society. Contrary to popular belief, the line underscored the important role lawyers play in society. Lawyers were regarded as the protectors of truth. Shakespeare’s character meant that, to bring about a contemplated revolution, the surest way to foment chaos and tyranny was to get rid of all the lawyers. Shakespeare thus proclaimed the crucial role lawyers play in preserving freedom and protecting society from lawlessness.

Defense lawyers in this country have long stood up against popular sentiments in order to preserve justice and freedom. John Adams, the second president of the United States, was a lawyer, statesman and diplomat. As a Founding Father, Adams advocated American independence from Britain. In 1770, when a street confrontation resulted in British soldiers killing five civilians in what became known as the Boston Massacre, the soldiers were arrested on criminal charges and had trouble finding legal counsel to represent them. When they asked Adams to organize their defense, he accepted, even though he knew it would hurt his reputation. In defending the soldiers, Adams made his now-famous quote regarding making decisions based on the evidence: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Anti-British feelings in Boston was at a boiling point, yet Adams provided a principled, controversial and successful legal defense of the accused British soldiers because he believed in the unqualified right to counsel and the “protection of innocence.”

Adams also offered his now-famous, detailed defense of Blackstone’s Ratio: “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘Whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen, that would be the end of security whatsoever.”

The criminal defense lawyer stands before the prison gates and assures that anyone condemned to enter had the benefit of all rights accorded every American.

Brian P. Barrett is a Lake Placid lawyer currently representing snowshoe racer Tanveer Hussain of India, who is charged with sexual abuse of a 12-year-old girl.

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