About the Duke Rape Case

A couple of things.  

For two reasons, I have not previously blogged about the situation. One, it’s not Alabama. Two, as a criminal defense attorney, I was shocked, just shocked, to hear that a politically motivated prosecutor hid evidence, lied, and used race in order to put another notch on his conviction belt. Amazed, really. I mean, that kind of thing never happens in this country.

“Oh, by the way, I was being sarcastic.”  This sort of thing happens every day. Only, as Radley Balko points out, no-one notices.

And that leads me to the first thing I want to say about the Duke case. I don’t care why this particular case ended up in the news, or who lined up on whose side; what I hope is that everyone will walk away thinking about how utterly important all of our due process rights are.

Few things make me as mad as hearing some dope use some version of the “criminals have more rights than victims” talking point. Yeah, people who are accused of crimes do have rights. Why? To prevent innocent people from going to jail. Where would these three guys be now if they did not have a right to a trial? Or to see the evidence against them? Or to questions their accusers?

In other words, what would have happened to them if they were tried, before, oh, say, a military commission in GTMO?

The next thing I want to say concerns one of the most important rights that ALL OF US have:”Three Cheers for Lawyers.”

That’s the title of this editorial by Randy Barnett in the WSJ yesterday. The context is the Duke case. Barnett points out that while all of us are concerned – correctly – about the “perfect storm” that created the situation, we ought to also thank the folks who rescued these three kids: Their lawyers.

The next time you hear a lawyer joke, maybe you’ll think of the lawyers who represented these three boys and it won’t seem so funny. You probably can’t picture their faces and don’t know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That’s because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients’ innocence.

These lawyers held the prosecutor’s feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor’s misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

Barnett also makes a more general point about criminal defense lawyers:

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

Crime is a serious thing, but so is taking away someone’s liberty and branding them as a criminal for life. As a criminal defense attorney, it’s my job to be an obstructionist; to make the costs of criminalization so high that it will only happen to those folks who truly deserve it.

My clients are usually guilty, but, because the ultimate issue is bigger than my client, if the state wants to put them in jail, the state is going to have to cross every “t” and dot every lower case “j.”  The ultimate issue is that it ought to be very difficult to throw people in jail. Making it hard for the state to criminalize people means guilty people will go free. But in my mind, that is much preferable to what would have happened to these Duke kids if there was no-one to force the state to follow the law.

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