If winning isn't everything, why do they keep score?

So apparently while I have been out sick, the concepts of justice versus winning in the context of the criminal defense attorney has been thrown around the blawgosphere over the last several days. Apparently, as I understand the conversation, there is a question as to whether a criminal defense attorney should be concerned with the quest for justice or the goal of winning. I'm not really sure what the question is.

It seems it started with Gideon who believes our job is more about finding justice than it should be about winning. Then, as Greenfield points out, Malum argued it was only about winning. Then apparently Stephen Gustitis and Norm Pattis chimed in. Of course then Greenfield himself decided to repeat his first story of all time, although I don't think he answered the initial question. What is more important for the criminal defense attorney: justice or winning?

That's an easy one. But let me answer it with a question: How many criminal defendants who hire a defense attorney will be happy being led into custody following a loss at trial knowing that justice was done? None. That's how many.

There are different kinds of "justice." There is the big-picture morality justice that everyone will say they want. There is also the individualized justice that every individual seeks in their day-to-day, hour-by-hour day. What do those two types of justice have to do with the practice of criminal defense? Not a damn thing.

We don't seek justice. We don't seek the truth. We don't care, or at least we shouldn't. Ours is to zealously represent our client in the face of the overwhelming might of the government. The odds are stacked against us, and 99% of the time, we really probably shouldn't win. Ultimately, that's what it's all about; winning and losing.

Of course there are different types of winning and losing. Getting 60 months for someone charged in federal court with possession with intent to distribute 25 kilos of cocaine is a win. Having a Texas jury convict my client for DWB is a loss.

If it isn't about winning then consider this. Most will admit that the vast majority of criminal defendants are in fact legally guilty. It's just the odds of the game. If most are guilty, then their convictions result in justice. Yet, we still go to trial on those cases, don't we? The point is that if you're a defense attorney concerned about getting justice done, do you prepare the same for those trials when you know your client is guilty? The bar for ineffective assistance is pretty low. Do you try just as hard for those you know you are likely going to lose because the evidence is overwhelming as you do the ones you truly "believe" in?

The point is I don't give a damn about justice, at least not in the context of my job. As average joe on the street I care, but not in the confines of the courthouse as I sit next to my client. It simply doesn't matter. I once heard somewhere that if you want justice, go to a whorehouse, if you want to get screwed, go to court.

If I wanted to seek justice in my job, I would be a prosecutor. I shudder at the thought.

Comments

[Mark Bennett]

No no no.

Most criminal defendants are factually guilty. They're only legally guilty if the government proves them so beyond all reasonable doubt.

I know what you meant, but I think it's an important distinction to get right.