Josh Rogin is the senior correspondent for national security and politics for The Daily Beast. He recently wrote an “exclusive” article about Hillary Clinton’s role as a defense attorney in a 1975 Arkansas first-degree child rape case involving two perpetrators. One of the perpetrators was named Thomas Alfred Taylor who was the only one actually charged in the case. Clinton was a public defender. She agreed to represent Taylor after being asked to do so by the prosecutor in the case. She was 27 years old and it was her first criminal case. The case was resolved after the prosecutor offered, and Clinton accepted, a plea bargain approved by the trial judge. The plea deal allowed Taylor to plead to a reduced charge of unlawful fondling of a child under age 14. Although subject to a five-year sentence, Taylor was sentenced to four years’ probation and one year in jail with credit for the two months he had served awaiting disposition of his case.
The United States Supreme Court in 1970 gave its constitutional blessing to the widespread practice of plea bargaining in the nation’s criminal justice system. The high court said the practice is not only an integral component to an efficient court system by reducing the costs of trials but benefits both the prosecution and the defense in determining a fair outcome in a case. As a balancing safeguard, the court stipulated that plea bargains must be made known to, and approved by, the trial judge.
The prosecutor in the Taylor case weighed all the evidence produced by the police investigation. Prosecutors routinely charge the worse offense supported by the evidence to give them leverage or an opportunity to offer a plea to a reduced charge. The prosecutor in the Clinton 1975 rape case obviously came to an early conclusion that there was not enough credible evidence to present to a jury or that the factual circumstances were such that it warranted a settlement. He therefore put a plea deal on the table.
As the defense attorney in the case, Clinton had an ethical responsibility to either open or discuss plea negotiations with the prosecution. But at the end of the day she did not have the authority to craft a plea deal. She could only accept, or reject, any plea deal ultimately proffered by the prosecutor. And this decision could be made only after Clinton discussed all the details of the proposed deal with her client, including any alternative defense strategies. She had no other ethical choice.
So the plea bargain in this case was crafted by the prosecutor. It was offered to, and it was accepted by, Clinton. That’s the way the process works. The plea bargain was then presented to the judge who approved it. The judge also obviously felt that the plea was a fair resolution of the case as evidenced by his willingness to approve the plea deal to unlawful fondling. And the fact that he imposed such a lenient sentence indicates that while he believed some kind of improper sexual contact had occurred, it did not reach the level of rape in the first degree.
Various online and mainstream media reports have not reported any dissatisfaction by either the victim or her mother about plea deal at the time it was entered. And, in fact, in a 2008 Newsday article, the victim told the author of the article Glenn Thrush that Clinton was “just doing her job” in defense of the accused rapist and that he, like all criminal defendants, enjoyed a “right to be defended in court.” That understanding attitude was probably shaped by the fact that she was then in an Arkansas prison serving her own drug-related sentence.
This begs the question about why Rogin made no attempt discuss the role of the prosecutor and judge in this case. Instead, he elected impugn Clinton’s motives in her pre-trial and post-trial handling of the case. Clinton had one allegiance in the case: an uncompromising duty to prepare the best defense possible for her client, even if she believed him to be guilty. And she diligently fulfilled that duty by securing an expert to polygraph her client, by contacting and hiring a nationally renowned expert who found flaws in the physical evidence gathered by police investigators, and by investigating the victim’s background which was littered with false allegations of sexual assault. Clinton owed no allegiance to this alleged victim. Her sole allegiance rested in her duty to defend her client to the best of her abilities and within the parameters of her ethical responsibilities. She did precisely that.
The Rogin article gives the victim’s current voice credibility. He suggests that Clinton should have been prescient enough in 1975 to know she would make a possible 2016 presidential bid in which women’s issues would play a significant role, and therefore, should have sold her male client down the proverbial river and represented the interests of the alleged female victim instead. Such an implication, regardless of how slight, is “yellow journalism” at best and attempted political character assassination at worse. It would have also violated Clinton’s role as an officer of the court, a licensed attorney and trusted advocate. In fact, had Clinton violated her professional duty it would have demonstrated a complete lack of respect for her position and would have made her an unsuitable candidate for President, a position that often requires tough decisions and the ability to comply with the sworn duty to preserve, protect and defend the Constitution of the United States.
Josh Rogin may be an excellent journalist on national security and political issues It is abundantly clear, however, that The Daily Beast correspondent understands very little about the workings of the criminal justice system, especially when it comes to the duty an attorney owes to his/her client. It is not our intent to get involved in the politics of what the conservative website Free Beacon has dubbed “The Clinton Tapes.” But when an attorney’s duty-bound handling of a criminal case becomes political fodder, we should all speak up for our profession.