Defending the Role of the Defender

An interview with Professor Abbe Smith of Georgetown

CAMERON COTTON-O’BRIEN (1L)

PHOTO CREDIT: GEORGETOWN LAW.

It was not long into law school that some family members and one of my closest friends started giving me concerned and dubious looks when my response to what sort of law I was interested in was: criminal. Given that I have yet to even sit for an exam in the subject, any plausible response I could give would be far too abstract to be convincing, so I started hunting around for writers on the subject. I eventually came across the work of Professor Abbe Smith, now of Georgetown University in Washington, D.C., who is one of the most articulate and unflinching defenders of the practice of criminal defence. She is also the Director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law.

Fortunately, Prof. Smith was able to take a few minutes out of her busy court and classroom schedule to answer some questions about the important role of criminal defence, the ethical challenges of the practice, and (as I stretched to find some Canada-specific content) her view of whether or not itis a good idea to wear robes in the courtroom.

The following interview has been condensed and edited.

“What it means to be a criminal defence lawyer is to defend the guilty. That’s who we defend by and large.”

UV: How does the question of innocence and guilt factor in to representing people?

AS: What it means to be a criminal defence lawyer is to defend the guilty. That’s who we defend by and large. They may not be guilty of exactly what they are charged with, but we wouldn’t be living in a free society if law enforcement was rounding up innocent people right and left. By and large we are talking about factually guilty people and I don’t really care about that. That doesn’t stop me from being as passionately engaged as I was with Kelly’s case. [Prof.

Smith represented Patsy Kelly Jarrett, who was convicted of murder and spent twenty-eight years in prison. Jarrett maintained her innocence throughout. She was eventually pardoned.]

But for the other folks, they’ve been in so long they pose no threat to anybody. You know they have family and friends on the outside—it’s like they’ve been banished from the world. That inspires me too.

I think as a criminal defence lawyer, you can’t be both judge and lawyer. You’ve got to put your opinion of guilt and innocence to the side. The currency of the criminal justice system is not truth, it’s proof. I embrace that roll of taking on the state and making them meet their burden.

How do you respond to people who ask about why you choose to defend people you think are guilty?

It’s one thing to demand an explanation. It’s another thing to misunderstand the role of the lawyer in a free society. We’re only as good as our ability to provide fairness to the least popular; to the most reviled. And that’s a draw for defence lawyers, because we understand, nobody is going to question why you’re representing somebody in a shoplifting case, or a drunk driving case, or a possession of marijuana case—those are the kind of cases that everyone can kind of relate to.

But the really serious ones, where a person is made out to be a monster, those are the ones that often require the best representation. So, do I still get asked that question? Yes. And I have a variety of responses, depending on whether somebody is being hostile, or they’re genuinely curious.

I like talking about, and, as you can tell, I like writing about the motivations of criminal defence lawyers. It’s interesting and fun and it’s a very big part of the work. My students, they don’t decide to not do criminal defence work because it’s not sexy enough, or it’s not fun, or exciting, or stimulating—it’s the ethicalstuff, and the moral questions, and those are two different things, ethics and morals, but I think it is interesting to dig around, and I think sometimes to have to explain yourself. I don’t mind explaining myself to people who ask that, but I will never apologize. That feels wrong to me.

You mentioned this is bound up with the role of a lawyer in a free society; could you elaborate?

In the U.S. in particular, my theory of lawyers’ ethics is derived from our constitution and in particular the Bill of Rights. Those rights, you know, only exist insofar as there is somebody there to protect them.

Lawyers are critical to enforcing and upholding those rights for all of us. So that’s what I mean by the role of the lawyer in a free society.

Moreover, in a criminal context, it’s the state, or the government, or the Crown, which is an incredibly powerful force. And all of that is up against an individual accused. The importance of lawyers in keeping the Crown, or the state, or the government at bay is also that’s at the heart of what we mean by a free society. The rule of law means nobody is above the law.

“[The Bill of Rights] only exist insofar as there is somebody there to protect them. Lawyers are critical to enforcing and upholding those rights for all of us.”

What about the relationship between the language of law and laypersons who are going to be at an extreme disadvantage in understanding what is going on when this power of the state is brought against them?

Well that is true for all lawyers. My view of lawyers is that—some ethicist once referred to it as the “I am a law book” school of lawyers’ ethics. That it is key to the lawyer’s role to explain the law to people, even at the risk of suggesting defences or loopholes. We don’t want to privilege people who already understand the law and disadvantage those who are less sophisticated.

Given the complexity of the law it has been argued that it is simply impossible for any lawyer to know what is or is not against the law. Does this seem accurate?

I could offer a kind of Robert Cover-like critique of law as violence and sort of impenetrable and changing of the whim of

those in power. And that’s true, there’s some truth in that. And there are some things that are just not predictable. I think good lawyers will say, “I can’t predict this”. It’s a kind of ever-changing landscape.

What are your thoughts on whether or not it’s a good idea for lawyers to wear robes, as they do here in Canada?

I think the best thing it probably does in a criminal setting is the prosecutors and defence lawyers look alike. They are equally robed and dignified and serious, and maybe the jurors take them equally seriously as a result. I don’t know.

It also depends on how people dress. I think it was my very first serious felony jury trialwhen I was a young public defender, it was a three co-defendant robbery case, and one of theco-defendants lawyers, who—you know how when you ride a bicycle in order for your pants not to get caught in the spokes you put rubber bands at the bottom?— well he apparently bicycled to court, and still had those rubber bands on the bottoms of his pants, rendering them, I can only call them clown pants because they would be all puffy right above.

I thought maybe he had forgotten. I said, “Excuse me, sir, but you have those rubber bands, they’re still on your pants.”

He said, “Oh, nobody will ever notice, the jurors won’t even notice.” That was a metaphor for how he tried the case. Truly an incompetent lawyer. God bless the jury system sometimes: they knew he was a terrible lawyer and the jury kind of looked after his client. That speaks in favour of robes.