On representing unpopular clients, and taking the Fifth

Yesterday two news items illustrated the unfortunate public misunderstanding of a lawyer’s role in representing clients, and its misunderstanding of the basis for an important constitutional right:

1.  First, the Senate yesterday rejected President Obama’s nomination of Debo Adegbile to head the Justice Department’s Civil Rights Division. The most prominent factor in his defeat was his representation of Mumia Abu-Jamal in death penalty proceedings.

People in New Mexico might not be familiar with Mr. Abu-Jamal, but in 1981 he murdered a Philadephia police officer, Daniel Faulkner, in cold blood. I was an assistant DA in Philadelphia for three years (2000-2003), and I did not work on that case, but based on the publicly-available evidence, I don’t see how anyone could possibly doubt his guilt. Mr. Abu-Jamal is as guilty as they come.

Now I’m not familiar with Mr. Adegbile, and for all I know there may have been good reasons to vote against him, but his representation of Mr. Abu-Jamal is not one of them.

Our system of justice relies and depends on lawyers to zealously represent their clients, and the fact that a lawyer represents a client does not mean that he or she endorses the client’s goals, viewpoints, or actions. See New Mexico Rule of Professional Conduct 16-102(B) (“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”).

The lawyer’s job is to ensure that the client’s legal rights are protected (and one would think that would be deemed especially important in death penalty cases, given its irreversible nature). In my book, the fact that a lawyer, like Adegbile, takes on the representation of an unpopular or even loathsome client is a factor that makes him more qualified to hold a position of responsibility, not less. (Though let me say again, there may well have been other, legitimate reasons to oppose his confirmation).

As others have already pointed out, John Adams successfully defended the British soldiers accused of murder for their role in the Boston Massacre. Did that make him unqualified to serve his country during the American Revolution, or as President? Chief Justice John Roberts once represented a man on death row who killed eight people. Does that make him unqualified to serve as Chief Justice? The answer has to be “no.”

UPDATE (March 7, 2014): For an opposing view, check out this post by Ed Whelan of the Bench Memos blog, who notes that some opponents (Senator Toomey of Pennsylvania and present Philadelphia DA Seth Williams say they have no problem with Mr. Adegbile representing a convicted criminal, but that “it is one thing to provide legal representation and quite another to seize on a case and turn it into a political platform from which to launch an extreme attack on the justice system,” and they accuse the NAACP Legal Defense Fund of having “actively fanned the racial firestorm.” Of course, if a lawyer does something unethical in the course of representing a client, that is ground for legitimate criticism, but this non-specific sort of statement gives the reader no idea of what Mr. Adegbile is accused of doing.

For yet another opposing view, check out this post by Tamara Tabo at Above the Law.

(UPDATE: March 11, 2014): I’ve also come across this post, “On Lawyers Defending Views They Don’t Believe In,” by Michael Krauss at the new Rule of Law Blog, which makes the most persuasive case I’ve seen that Mr. Adegbile’s representation of Mr. Abu-Jamal can legitimately be held against him.

Another American who Took the Fifth
Another American who Took the Fifth

2.  Yesterday, former IRS official Lois Lerner again invoked her right to avoid self-incrimination under the Fifth Amendment. In response, a chorus of her critics have asked rhetorically why she would take the Fifth if she has nothing to hide?

Now I have no idea whether Ms. Lerner misused the IRS’ power to harass political opponents of the Obama Administration. If she did, hopefully she will be made to face the consequences. But it is dismaying to see self-professed opponents of overreaching government power criticize Ms. Lerner for exercising her constitutional rights.

The thing that people misunderstand is that the Fifth Amendment exists to protect the innocent. In Ohio v. Reiner, 532 U.S. 17, 20 (2001), the U.S. Supreme Court said:

“One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. … [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” (internal citations omitted).

Or take note of what Ken White said yesterday at Popehat:

“You take the Fifth because the government can’t be trusted.  You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things.  You take the Fifth because even if you didn’t do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you.  You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

If you have any doubt on this point, I urge you to watch “Don’t Talk to the Police” by Prof. James Duane of Regent University School of Law. It’s probably the best law lecture you’ll ever see.

Now, again, I’m not saying Ms. Lerner is innocent. I have no idea. But people who criticize her for taking the Fifth should consider the possibility that they may need to do so themselves some day.

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