In Defense of the Defense.
Americans and particularly politicians have a shameful habit of demeaning and devaluing the work of criminal defense attorneys. Our criminal justice system is an adversarial process. Prosecutors seek to convict the accused (though technically they are supposed to pursue “justice”), defense attorneys protect the rights of the accused. Absent the arduous work of defense attorneys, the justice system would run roughshod over everyone accused of a crime. The ability of the system to dole out some degree of justice is dependent, almost entirely, on the work of criminal defense attorneys and public defenders.
The right to representation of counsel is fundamental. Indeed, representation by counsel in a criminal proceeding is a constitutional right (Gideon v. Wainwright). We cannot pick and choose who is entitled to the right or under what circumstances the right should be suspended. Do you trust prosecutors, government officials and judges to always, independently protect your rights? They are human, with human biases, blind spots, self-interest, and personal agendas. That is why rapists, murderers, pedophiles and terrorists have the same right to Counsel as the wrongly accused. The guilty must be defended so that the innocent are too. It applies always or not at all. It is the job of criminal defense attorneys to zealously advocate for the rights of their client. Moreover, serving as a public defender is a particularly thankless job, but, arguably, the most essential in the entire justice system. Public defenders are the first and last line of defense against prosecutorial overreach of the poor and indigent.
This is why Republican attacks on Judge Ketanji Brown Jackson for her record as a public defender ring so false. In yesterday’s hearing Sen. Graham laid into Judge Jackson for her prior work as a public defender defending Guantanamo Bay detainees. It should be noted that public defenders do not choose their clients. But that is beside the point, everyone subject to prosecution in the United States is entitled to representation. To paraphrase Oprah “You get a lawyer! You get a lawyer! You, Gitmo detainee, get a lawyer!” Sen. Graham misleadingly stated that Judge Jackson accused the government of acting as war criminals. What Judge Jackson actually did was point out that her clients had been tortured, which is a war crime. But that, also, is beside the point. Judge Jackson, as a public defender is obligated by her oath and legal ethics to fully and competently advocate for her clients. Torture is not just reprehensible, but violative of the laws of the United States and values we share as Americans.
Anyone with a rudimentary understanding of the criminal justice system understands the vital role played by public defenders. That is why it is particularly shameful when someone like Sen. Graham, a lawyer, blatantly warps reality and diminishes that critical work in order to score a few political points. Contrary to Sen. Graham’s implications, Judge Jackson did not support terrorists, she supported the U.S. Constitution by protecting their rights.
Rather than attacking Judge Jackson for her work as a public defender, Sen. Graham should have thanked her for her laudable service. Sen. Graham, an elected official sworn to uphold the Constitution, should have highlighted Judge Jackson’s time as a public defender as evidence of her devotion to the Constitution. Instead, he peddled dishonest and misleading attacks. Worse yet, he engaged in performative outrage and ran to the media to produce a soundbite.
Is it too much to ask that our elected official engage in honest discussions? Is it really so terrible to ask that they sometimes set aside their interest in power and simply do their job? It is too much… I know… But I will never stop hoping for more and being disappointed when they fall short.
