Defending Against the Hue and Cry of the Angry Mob
I have been representing people accused of all sorts of crimes for the past 25 years. I have defended murder cases, arson cases, federal fraud cases, DUI cases, domestic violence cases, alleged school shooting cases, and just about every other criminal case imaginable. Based on my experience, more people are wrongfully accused in cases involving the worst allegations. I mean cases where the conduct is offensive to the core, like an alleged rape or murder of a child or a “hate” crime that offends the current political sentiment.
In these cases, the “hue and cry” takes over, and left unchecked, mob justice will prevail. History is always instructive. In early English times, a victim wronged by a felon had a duty to raise the “hue and cry” of the community. The community would assemble the mob and chase down the bad guy. If the criminal ran, the mob would give chase. And if he attempted to evade the pursuit, the mob was entitled to kill him if they happen to find him evidence of guilt, at least enough evidence to satisfy the mob. If he willingly turned himself over, the crook would get whatever justice the system meted out. This was the law.
In metaphorical terms, the “hue and cry” still exists today. But now it’s cloaked in righteousness. When an alleged act is so offensive on its face (or otherwise significant for one reason or another), the media or the political forces raise the public hue and cry, and the angry mob assembles.
But like most things in the world, the superficial assessment is seldom accurate. In reality, it’s not always so obvious that someone accused of an offensive, heinous act is guilty. When we really dig into the allegations, things become blurred. We find that reality has given way to perception. Sometimes there are nefarious motives, and an alleged victim just flat out lies. Unintentional false allegations are also common. There may be a mistaken identification. We have all heard of rape exonerations after DNA reveals the true perpetrator—sometimes after a wrongfully accused and convicted defendant spends years in prison. Sometimes crimes are overtly driven by political motives, resulting in some of the most egregious miscarriages of justice.
In these situations, the ground is fertile for convictions (false or not) based on questionable allegations supported by marginal or unreliable evidence. But because of the righteous cause or the crude offensiveness of the allegation—this becomes justifiable, even if it means convicting an innocent person.
We cannot simply attribute such miscarriages of justice to bad motives. After all, the system is built and maintained by humans. We like to think it is bigger and better than the sum of its parts. But in the end, it is subject to the flaws and limitations of its human foundation. We are all inherently biased in some way. That bias influences our perception of everything. We tend to interpret things in a manner consistent with our internal bias. We confirm our preconceived notions of what we believe something to be. This is confirmation bias. The less we recognize it, the more susceptible we are to it.
I have often been called to explain how and why I can represent people accused of a heinous act, particularly when the media has done its work on the story. It’s tellingly significant that the question rarely distinguishes guilt from innocence. In other words, the question is not how I can represent someone who is guilty of an awful crime. The question presumes guilt from the allegation. “How can you represent that rapist, pervert, abuser, etc.?”
This is exactly how and why I do what I do. The tendency is to presume guilt, not innocence, based merely on the allegation. This flies in the face of the most basic tenant of our justice system—the presumption of innocence.
So how can I represent someone accused of an awful, perverted, offense? My response is typically framed as question: “What if my client is innocent?” Sometimes this question causes a pause. I can almost see the vague notion of actual innocence tumbling around in someone’s thought process. Too often, though, that concept is discarded without any real contemplation. “But I’m talking about the guilty people,” they explain. Right back to the circular problem—justifying the conclusion of guilt by presuming it from the allegation (not the proof).
The reality is that this job—criminal defense–takes the heaviest toll on us when we have an innocent client. Imagine for a moment what it is like to represent someone who is innocent (not just presumptively, but actually) in the face of the heavy-handed government, fueled by the over-the-top public outrage at the mere suggestion of an allegation. Now consider what it is like if the jury gets it wrong, and your innocent client is convicted. Try sleeping with that night after night for 25 years while your innocent client (wrongly convicted) lays his head on the hard, cold prison cot for the same period of time, praying every night that one day (before death) the truth will set him free. It’s a burden that is never lifted.
But not all allegations are false; quite the opposite. And anyone in my profession would quickly go broke if they only represented innocent people. So back to the question. Why represent those who are or might be guilty?
The truth is that my job is the same either way, irrespective of the internal conflicts and pressure we heap on ourselves. Our system cannot function if the basic legal standards are constantly adjusted to fit society’s pre-conceived notions of guilt or innocence. The same is true with our internal standards. Our “criminal defense” compass has to point in a consistent direction with a singular goal—represent our clients to achieve the best result possible. Fight as needed. Negotiate as required. And, when necessary, put the government to its self-endowed chore of proving its case beyond a reasonable doubt to overcome the presumption of innocence. For this to work, we cannot allow the magnetic force of the social outrage mob to pull our compass needle off course. Why? Because all too often the mob is wrong, whether we know it or not.
The system, the rules, the Constitution apply equally to all. If we compromise the protection of the law to mete out punishment to those we hate—even the guilty ones–we can hardly call on the law to protect the innocent in a different case. Like Aristotle’s scientific method, protections of the system are designed to transcend the flaw of human prejudice. The idea in science is to follow the same protocol every time, even if we are positive that we are right. This way we can expose and eliminate our inherent “confirmation bias.” The objective procedure tests our subjective beliefs. It works if we let it.
Like the procedure of the scientific method, the legal procedure has to be rigid and undaunting in the face of political forces, emotion, and every other kind of pressure. Anything less results in the exact opposite of the intended goal–mob justice, chaos, and a complete breakdown of truth. Ironically, to achieve law and order, we are often all too willing to bend the rules. Contrary to the law-and-order goal, the result is the exact opposite.
We use the words “presumption of innocence” so often that they lose their meaning and significance. Maybe that’s the problem. We take such things for granted to our own fault. We forget that other countries and cultures (current and throughout history) did not share this tenant. We forget history. And that’s exactly how we end up losing the very safeguards that our founders put in place to protects us. It’s an effective medication that works so well when we take it, yet it makes us think we don’t need it. After we stop the dosage, it’s almost impossible to understand the chaos that ensues. We need the medication for that, but the chaos prevents us from seeing the solution. Lather, rinse, repeat.
It is not an accident that our Founding Fathers stressed the importance of these fundamental principles. They studied history and read the likes of William Blackstone. In his Commentaries on the Laws of England (circa 1760s), he first set forth “Blackstone’s Ratio,” the bold proposition that it’s “better that ten guilty persons escape, than that one innocent suffer.”
Benjamin Franklin is credited with a similar quote (no doubt borrowed from Blackstone): “[I]t is better 100 guilty Persons should escape than that one innocent Person should suffer.”
And perhaps this is why John Adams opted to represent British Soldiers accused of murder after the Boston Massacre. Think about the perceived hypocrisy of that. Adams–one of the strongest advocates against the British tyranny—defending at trial the armed extension of that tyranny. But Adams was no hypocrite. He knew that freedom could not come at the cost of an agenda, even one as significant as his own fight against the draconian tyranny of King George. Adams himself put it best:
It is of more importance to the community that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished…. when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.
Though Blackstone’s Ratio states the principle succinctly, it doesn’t tell us why it’s better that we protect innocent, even if at the expense of letting the guilty go free. It’s a deeper question than we might initially think.
The point is that we have rules of law. We have protections of law. We have the Constitution. And if we are willing to change the rules for a cause—even a good or righteous cause—we can’t easily expect to change the rules back the next time. The rules have to stay in place the way they are for everyone (even the worst), for every crime, for every accusation. Forever. There can be no exception for the most egregious case or the most noble cause.
One last foray into historical literature, and the point will be made.
In a play entitled A Man for All Seasons, British author Robert Bolt wrote about the life of Sir Thomas More, a renowned attorney in 16th century England. In a famous scene from the play, Sir Thomas More’s wife (Alice), his daughter (Margaret), and his son-in-law (Roper) beg him to arrest his enemy (Richard Rich). By all rights, Rich is a bad guy and intends to do bad things. Yet More refuses, insisting that his enemy hasn’t done anything yet to violate the law. He may be bad and even dangerous, but as More recognizes, “[t]here is no law against that.”
Yet More’s family persists, urging him to act even if no law was broken. They argue that the ends (stopping the bad guy) justify the means (abandoning the protection of the law). They go so far as accusing More of putting human law above God’s law (of right and wrong).
More’s response to Roper makes clear the point of Blackstone’s Ratio:
ROPER: Then you set man’s law above God’s!
MORE: No, far below; but let me draw your attention to a fact — I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager…
* * *
ROPER: So, you’d give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: (Roused and excited). Oh? (Advances on ROPER) And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? (He leaves him) This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I’d give the Devil benefit of law, for my own safety’s sake
The point of all this? We criminal defense attorneys represent everyone, guilty or not. The rule of law must apply the same protection to all, even the vilest. There are no exceptions in a free society, not for the most righteous cause and not for the worst criminal. Why? Because there will come a time when the mob gets it wrong and the cause is not so righteous. Then it will be too late to fix it. The protections of the law will be gone and gone for good. Sooner or later the mob doubles back on us (we the innocent and most “righteous”), and there is no place to find shelter or protection.
Millions have been killed in the name of justice and righteousness by the likes of Stalin, Hitler, Mao, and all their successors who believed their causes were just. Believe in God or not, we should at least have learned not to presume righteousness. The only protection from our own shortcomings is a rule of law that remains intact for everyone. Let the scientific method of the law do its job.
Now more than ever this rings true:
We charge the police with all sorts of misconduct when they hurt those we support, but we sing their praise and support when we want them to protect us and go after those we hate.
We want the government to sic its forces on our enemies, but not on us or our allies.
We agree that innocent people are wrongly accused and convicted, but never in the case we want prosecuted the most.
What we are really saying represents the height of hypocrisy: Justice for me but not for thee.
So why represent people accused of awful crimes? Because maybe they are innocent. Maybe the leviathan force of the government is overreaching. And maybe to preserve the rule of law for the next person in line who is innocent.
I take my cues from history, philosophy, and reason. Not the hue and cry of the angry mob. Like Sir Thomas More, I will “give the Devil benefit of law” for the sake of my own safety and that of all the innocent.
Stephen E. Palmer
Criminal Defense Attorney