Steve Sachs Duke


Monday, July 12, 2004


Defending Saddam: From a recent post on The Corner:

An e-mail: "I'm a law school student working at the London office of a mega American law firm... A firmwide email was just sent out requesting volunteers who could help with the Saddam defence. Disgusted and appalled, I was hoping you might know whom I should contact if I want to volunteer with Saddam's prosecution."

I know it's often argued that even guilty defendants have a right to counsel, and that the system needs defense lawyers there to keep the prosecution honest. But neither of these claims presents a reason why any particular lawyer (who has not undertaken such responsibilities as a public defender), should exert effort to keep a horrible murderer out of jail. To my mind, regardless of the law, the moral right to counsel is only a right to be represented by a counselor who agrees to represent you; it would not justify the conscription of a defense lawyer off the streets.

In fact, is it really that great a loss if someone has no access to counsel, not because they're poor, but because all other lawyers have refused on moral grounds? Say that someone is caught red-handed by police, as well as by surveillance cameras and CNN News, in the act of mercilessly beating to death a small child. The defendant, who is not mentally incompetent, relishes the publicity a trial will bring (in the hopes of a future book deal) and insists on pleading not guilty and claiming actual innocence. If no other lawyer could take the case in good conscience, would you, as the last lawyer on earth, be obliged to act as his or her zealous advocate? Would you be obliged to tell the jury, "He didn't do it"?

It seems to me that the need to "keep the system working" is ultimately a slippery-slope argument, alleging that if the prosecution isn't kept honest, an innocent person in a future trial might face a greater risk of conviction. But there are a lot of lawyers in the world, and in almost any case where there's a chance of actual innocence--or even where the client is guilty, but there's been serious police misconduct--somebody would be willing to work for pay. As a result, the situation described, where everyone refuses to take a legitimate case on purely moral grounds, thus seems sufficiently unlikely as to be irrelevant to whether the system works or fails. In other words, this slope doesn't slip.

On a different note, I think it's worth questioning how the lawyers who take these cases are allocating their time. It's not like Saddam is lacking in defense lawyers, which his family's stolen billions can easily pay for. The high-profile defendants whose lawyers make the news are hardly the neediest of clients; as Josh pointed out when we discussed the issue today, O.J. Simpson was not exactly impoverished. Normally I think that acts of charity shouldn't be looked down upon simply because some other act might have been more productive. But if you're going to volunteer your time in an effort to keep someone out of jail, aren't there people in this world far more deserving than a vicious tyrant, and far less likely to receive aid? One of Saddam's lawyers, Curtis Doebbler, has previously represented Sudanese refugees from genocide and written articles on behalf of Egyptian intellectual and human-rights activist Said Eddin Ibrahim. Why, then, spend one's limited time and resources in an effort to free someone who has notoriously committed genocides, or murdered dissenters like Ibrahim left and right?




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© 2011 Stephen E. Sachs


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