James F. Bogen, Esq. Cincinnatus Standard Staff Writer Read more of James' columns at the Ask an Attorney Archives
Defending the Accused
Defending the accused is one of the first things that comes to mind when many people think about attorneys.  The right to counsel for the accused has been called the linchpin of constitutional protection.  The Sixth Amendment of the U.S. Constitution states, "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for  his defense."  In this past election, there were some attacks made on candidates who were defense attorneys.  I'm not going to name anybody involved in any of these attacks-- they all know who they are.  But I definitely feel the need to respond to them.
One can look anywhere in history to find attorneys who have represented publicly-despised defendants.  Before they were elected to the White House, both John Adams and Abraham Lincoln did just that.  So did Clarence Darrow and the fictional attorney Atticus Finch.  I will use the example of John Adams to illustrate this point.
As we all know, John Adams was a leading patriot in his day.  He was a co-author of the Declaration of Independence and a leader in the Constitutional Convention.  Adams was also an attorney for the defense of the British soldiers who were put on trial for their participation in the Boston Massacre, an event that was used as a rallying cry for the Revolutionary War.
The captain of the soldiers was acquitted after the jury was unable to find that he ordered the soldiers to fire.  In the separate trial of the soldiers, Adams argued that if the soldiers were endangered, they had the legal right to defend themselves and were therefore not guilty of murder.  Adams further added that if they were provoked but not endangered, then they were at the most guilty of the lesser charge of manslaughter (in modern cases it is extremely difficult to get a jury instruction for manslaughter when arguing self-defense).  The jury ended up acquitting six of the soldiers.  Two were found guilty of manslaughter.
This case is an excellent example of an attorney zealously defending a client charged with a horrible crime despite popular resentment and the insinuations of political enemies.  Adams felt very strongly about the right to counsel, and he wrote that attorneys ought to be "... independent and impartial at all times and in every circumstance."
The disciplinary rules that govern attorneys today advocate zealous representation of clients within the bounds of the law.  That is an attorney's duty regardless of what his client is charged with.  If a client wishes to take his case to trial, the attorney is obligated to put up the best defense he can.
As far as choosing our own clients, I can tell you that the vast majority of defense attorneys would be out of business if they chose their own clients.  Think about who people from the suburbs like to hire when they get DUIs or when their kids get into trouble for doing something stupid:  some attorney who might or might not have ever seen the inside of a courtroom, or an experienced defense attorney who has handled a significant number of difficult cases?
Even though I personally did not support the candidates who were attacked for their work as defense attorneys, I was disgusted by the attacks that were made on them.  Contrary to what was implied in the attacks, representing a person accused of a crime does not constitute an endorsement of the conduct that the client is accused of.  I suppose those responsible for the attacks would like to see the Constitution thrown into the garbage for people charged with serious crimes.  Affording constitutional protections to even the worst of the worst is the mark of a civilized society.  Representation of the accused is the backbone of our constitutional protections.  Think about that the next time you are pulled over by a police officer.
James Bogen is an attorney in solo practice in Cincinnati.  Any questions or comments can be directed to Mr. Bogen at attorneybogen@yahoo.com.