To the Editor:
In his generally admiring review of The Best Defense by Alan M. Dershowitz [Books in Review, October 1982] Joseph W. Bishop, Jr. describes a case in which Dershowitz, through “a series of intricate procedural maneuvers,” managed to prevent the prosecution of “terrorists who were fairly clearly responsible for the murder of an innocent girl.”
At the conclusion of the review Mr. Bishop offers three justifications for “a lawyer’s using every legal device he can think of to get off a man whom he knows to be guilty.” First, he cites Samuel Johnson’s argument that it is for the judge and jury, not the lawyer, to determine guilt or innocence. Of course, the preferred tactic of Dershowitz and other defense attorneys is to prevent judge and jury from having access to the evidence which is necessary for such a determination. Dr. Johnson lived at a time when defense attorneys did not have available the legal tools which Dershowitz so skillfully exploits. In 18th-century England the accused was not even permitted the assistance of counsel in presenting his case, and appeal was virtually nonexistent. I do not think that Dr. Johnson would have had any difficulty distinguishing between arguing the meaning of certain evidence before a jury and preventing a jury from making a fully informed judgment (or getting that judgment overturned on technical grounds).
Secondly, Mr. Bishop argues that the good advocate should first convince himself that his client is innocent. Of course, this could be rather difficult if the lawyer knows his client to be guilty. Mr. Bishop has just pointed out that determining guilt or innocence is not the lawyer’s job. The ethical problem lies not in defending the guilty, but in making use of legal devices which prevent the criminal-justice system from functioning properly. How would Mr. Bishop regard the ethics of a prosecutor who, by preventing the introduction of relevant evidence, managed to convict a man he knew to be innocent?
Finally, Mr. Bishop contends that we can live with the unjust acquittal of criminals and the spectacle of a professor of law bragging of his success in frustrating justice because the alternative is “Communist justice,” which he defines as a system in which the “guilty” are not entitled to a defense and the determination of guilt is made by the government. Does Mr. Bishop believe that “Communist justice” is what prevails in the European countries (or, for that matter, prevailed in this country for most of its history)? I had not realized that the ability of a lawyer to prevent the punishment of murderers of innocent girls was so essential to a non-Communist system of justice. The legal tactics which Dershowitz uses are generally unavailable in other Western nations, and yet, strangely enough, at least one eminent scholar of comparative law has concluded that if he were innocent, he would prefer to be tried by one of the civil-law courts of Europe, but that if he were guilty, he would prefer to be tried by an American court.
I would suggest to Mr. Bishop that it is possible to view a criminal case not as a battle of wits between opposing attorneys but as a serious attempt to determine guilt or innocence, and we should judge the criminal-justice system by how accurately and well it performs that function. I would further suggest that Dershowitz’s success in exonerating the guilty is compelling evidence, as if any more were needed, that our system is working very poorly indeed, and that reform is badly needed. One of the principal obstacles to such reform is the complacency of Mr. Bishop and his colleagues, who, in their ignorance of all other legal systems, seem to believe that any change in the status quo means “Communist justice.”
Joseph W. Bishop, Jr., writes:
Jon Jewett’s letter is simply a shotgun blast of indignant language, aimed in the general direction of the American system of criminal justice and particularly at the provision of the Sixth Amendment to the Constitution of the United States that “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” It does not say “an innocent accused.” I would be the last to contend that our system is perfect, or even the best. It is too often weighted in favor of the guilty. In particular, I wish the courts would do away with the exclusionary rule, which bars the admission of even the most cogent evidence if obtained in violation of the accused’s constitutional rights. (I would continue to exclude coerced confessions, not primarily in order to deter violation of the accused’s Fifth Amendment right not to be “compelled in any criminal case to be a witness against himself,” but because such confessions are too likely to be untrue. It is for this reason that their admission is generally barred by the British Judges’ Rules.)
The right to the assistance of counsel is another matter. Would Mr. Jewett repeal this clause of the Sixth Amendment? It is not, as he seems to think (I infer that he is not a lawyer), a peculiarity of American criminal justice. In England, in West Germany, and probably in every other constitutional democracy, an accused, guilty or innocent, has a similar right. But a right to counsel is meaningless unless counsel has a duty and privilege to do whatever law and ethics permit to defend his client. Does Mr. Jewett really prefer a system where the government first decides whether an accused is guilty, and if it decides that he is, denies him the assistance of counsel? If he were innocent of the crime charged, but guilty of dissident opinions, would he really prefer Communist justice to American?
Incidentally, Mr. Jewett seems to have read my review with no more care than he has read the Fifth and Sixth Amendments if, indeed, he has read them at all. I did not say that an advocate “should first convince himself that his client is innocent.” I merely said that he does usually convince himself that his client, though guilty of some crime, is not guilty of the one with which he is charged, or at least is being treated unfairly, as by being singled out for prosecution when others, equally guilty, are not charged. I know this from many years of empirical observation. If Mr. Jewett knew anything about criminal law and lawyers (which I suspect he does not), he would know it too.