Every criminal defense attorney has had a client whose crime repulsed the attorney.
Every criminal suspect is entitled under both our state and federal constitutions to have the assistance of counsel and to have an attorney appointed to them if they cannot afford to hire one. This is a constitutionally mandated duty placed not only upon the criminal justice system, but the criminal defense lawyer, who dares to fight for the accused.
These two realities often stir immense conflict in our legal profession.
The entitlement to counsel sometimes creates serious professional challenges for the attorneys facing very unpopular criminal cases and clients.
Walmart Mass Shooter Appointed Counsel
For example, no El Paso criminal defense attorney would want to accept, much less volunteer for, an appointment to represent Patrick Wood Crusius, the Walmart mass shooter.
It was, therefore, quite laudable when El Paso County Judge Penny Hamilton appointed prominent San Antonio attorney Mark Stevens to represent the shooter. That extraordinary judicial move relieved some El Paso criminal defense attorney from the enormous burden—and all the professional and social risks that would entail—from having to defend one of the most, if not the most, unpopular client in the nation.
Attorney Stevens will now step up to the plate with the professional integrity and skills needed to ensure that the Sixth Amendment right to counsel is protected, even for this reviled, most unpopular client.
History of Representing Unpopular Clients is Instructive
Writing in the July 1, 2019 edition of the ABA Journal, Bob Carlson, the immediate past president of the American Bar Association, pointed to the 1770 example set by John Adams, one of this nation’s Founding Fathers, who “risked his reputation and inflamed the ire of his fellow patriots when he represented the British soldiers who were accused of killing five colonists in the Boston Massacre.”
This remarkable example by John Adams was made before this nation, and its Bill of Rights, was even created. The future second president of the United States understood that for any legal system to work the accused criminal suspect must enjoy the right to legal representation, regardless of how unpopular their crime. Carlson pointed out that Adams was one of the 26 attorneys who have served as president of this great nation.
Criminal Defense Lawyers Defend Rights and Liberties
Carlson gave this advice, both to attorneys and the general public:
“Equating the bad acts of the accused with the attorney representing them can be a natural human impulse, especially when the crimes alleged are heinous and the defendants are unpopular. Lawyers, however, should not be ostracized or face penalties such as loss of business or abuse if they choose to defend a reviled client.
“Lawyers are not defending the crime. They are defending rights and liberties—to which we all are entitled—that are enshrined in the Constitution. They are ensuring that the procedures are fair, that the accused has not been mistreated and that the government has met its burden of proof beyond any reasonable doubt. These safeguards ensure that justice is there for the innocent and the guilty, the sympathetic as well as the unsympathetic defendant.”
But the reality is that the “sins of the client” are often visited upon the attorney.
Sins of the Client, Not Sins of the Lawyer
Take, for example, the case of Debo Adegbile who in 2014 was denied an appointment to be chief of the Civil Rights Division of the U.S. Justice Department by the U.S. Senate. The reason: that when he was an executive with the NAACP Legal Defense Fund, he had worked on legal briefs on behalf of the notorious (whether deserved or not) convicted Pennsylvania cop-killer Mumia Abu-Jamal.
Writing in the March 19, 2014 The Week, Andrew Cohen wrote that “the primary argument made against Adegbile [in the Senate confirmation process was] essentially that the sins of the client ought to be laid upon the lawyer.”
Much of the opposition against Adegbile was led by Sen. Chris Coons (D-DE) who was intimidated by possible voter disapproval should he support the nomination of someone who had worked on behalf of a very unpopular cop-killer.
Tremendous backlash from hundreds of students and faculty at Yale Law School (where Coons got his law degree) did not deter the Delaware senator from joining six other Democrats and the body of Republicans to defeat Adegbile’s nomination.
In effect, Adegbile was denied a very prestigious government appointment for no other reason than he assisted an unpopular client.
Then there is the more recent case of Harvard law professor Ronald S. Sullivan who lost a faculty dean position after joining the defense team of disgraced Hollywood movie mogul Harvey Weinstein.
Harvard Law Doesn’t Appreciate Constitutional Role of Defense Lawyers
Writing in the May 20, 2019 edition of Above The Law, criminal defense attorney Toni Messina wrote that although Sullivan ultimately left the Weinstein defense team, Harvard officials nonetheless terminated his faulty dean position while allowing him to keep his position as director of the university’s Criminal Justice Institute. Messina said the prestigious university’s actions were taken because:
“According to an editorial written by Harvard law professor Randall Kennedy, a friend of Sullivan’s, ‘a cadre of students at Winthrop [House] and other parts of the university, demanded the lawyer’s ouster asserting that his choice of client undermined their confidence in his ability to be properly attuned to their thoughts and feelings.’ Harvard did an independent study of the ‘climate’ at Winthrop House and sided with the students.”
One would think that Harvard Law School students, reportedly some of the brightest in the country, would appreciate the social, professional and personal risks John Adams took in the Boston Massacre case—risks that now allow these same students to attend Harvard with an opportunity to join one of the greatest professions there is, the “legal profession.”
Messina, who is currently representing a high profile, extremely controversial murder case, offered this advice that the instigating Harvard Law School students should heed:
“Although charged with murdering ‘Junior,’ my client, like anyone accused of a crime, deserves the best defense they can get. Only that way are the rights of everyone upheld. So far, I’ve been threatened on Instagram and other social media. That’s the downside in taking on an unpopular client. Am I concerned? Yes, but one thing that I’m not concerned about is losing my job. My job is to represent the guy everybody hates. In fact, if I didn’t represent my client well, that’s why I could be charged with an ethical violation.”
Every law student in this country should understand the constitutional import of what Messina is saying. It is the same thing John Adams said more than 250 years ago: “Always stand on principle … even if you stand alone.”
Kudos to Lawyers who Represent the Unpopular
And if law students and practicing attorneys do not have the professional courage and integrity to accept Adams’ advice and “stand on principle” as Messina has done, then they should take a job as a long-haul truck driver because there is no place for them in the legal profession.
We have no doubt that the El Paso Walmart shooter will get the best possible defense from attorney Mark Stevens, he is an excellent lawyer. He had the courage to accept the appointment and we have no doubt that he will have the integrity to fulfill the right guaranteed by the Sixth Amendment that every defendant accused of a crime, including the Walmart shooter, is entitled to effective assistance of counsel.
Bob Carlson offered this sound advice concerning the representation of unpopular clients like the Walmart shooter:
“Even Nazi war criminals were afforded counsel. It did not mean their lawyers were sympathizers.”