#arizona #criminal #defense #attorneys
This is my last President s Message as I, like other lesser knowns on a more national scale, such as Millard Filmore and Benjamin Harrison, pass on to that most cherished position of Past President. But, before I go, I want to thank all of you for all your help and encouragement these past months. I want to especially thank the Board and our Executive Director, MaryBeth Wyatt, without whose help I could not have done it. I also want to thank the chairpersons and all the members of the CLE, the Death Penalty, and the Legislative committees for their tireless efforts in advancing the causes of ACDLA. On a personal note, I want to especially thank Michael Hanle, Richard Jaffe, John Lentine, Gar and Nettie Blume for all their support, help and prayers as I navigated some troubling personal waters during this time. As Michael and the other officers take the reins of ACDLA, I know our organization will be in great hands.
A parting shot: Our role as criminal defense lawyers was summed up in the case of United States v. Wade. 388 U.S.218 (1967) where Justices Harlan and Stewart, in their concurring opinion, stated:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but more often than not, defense counsel will cross examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for the truth.
Nearly every day on the listserve I see congratulatory messages for those lawyers who have won and whose clients have been found not guilty or guilty of a lesser offense, and that is as it should be. But, I think it is important to put a finer edge on that term, winning . If we believe what Justices Harlan and Stewart wrote and we embrace that as the real role of a criminal defense attorney, winning has a much broader meaning. By that standard every time one of us crosses a witness for the government, every time we file a motion to suppress evidence, every time we put twelve in the box, every time we stop a client from talking to the police, every time we demand proof beyond a reasonable doubt, we win. Maybe not in the traditional sense of the term, but in terms of the preservation of the rights of every individual as guaranteed under our Constitution, we win. So I respectfully suggest that we don t keep score in the traditional sense, but rather keep score by the number of times we have been like doubled up fists, smashing the barriers to mercy, justice, equality and due process. We don t often succeed at first, but we keep on. We may be bloody and tired but we keep on. We may be criticized and ridiculed but we keep on. We know that with each blow the resistance fades, the wall of injustice is weaker and winning is that much closer to being a reality.