McVeigh's right to fair trial Our Constitution entitles defendants to a vigorous defense

March 30, 1997|By JAMES M. KRAMON

'Why are you representing a guilty person?" is a question that defense law-yers hear all the time. This is a question that perplexes many outside the legal profession who do not fully appreciate or understand our constitutional rights.

Timothy J. McVeigh is scheduled to go on trial tomorrow in Denver. He is charged with one of the most heinous crimes in the nation's history, the bombing of an Oklahoma City federal building that killed 168 people.

Our legal system says McVeigh is innocent until proved guilty, but he's already been convicted in the minds of just about everybody I talk to. Those feelings were reinforced by news reports saying McVeigh confessed to the bombing during interviews with his defense team.

Stephen Jones, McVeigh's lawyer, denies that his client confessed and maintains that the news stories were based on information in outdated defense documents. But the purported confession reignited the "why are you representing a guilty person" question and left many people wondering whether Jones tacitly condones his client's alleged crimes.

I've been a practicing attorney for 25 years, including a four-year stint as a federal prosecutor. Prosecutors almost invariably feel that they are fighting a worthy cause - getting criminals off the streets. Defense attorneys, on the other hand, find satisfaction in believing that our criminal justice system is excellent, and they're helping to advance it.

I've defended people that I knew were guilty on numerous occasions in my private practice. Generally, I've found that people outside the legal system consider it admirable for an attorney to represent a person who may be innocent. But the reverse is true when an attorney represents a person who is obviously guilty or whose guilt is widely perceived.

Jones is a man without a sanctuary. My experience tells me that he's probably been approached by many people who ask why he's defending McVeigh, and whose eyes and facial expressions make it clear that as far as they're concerned, Jones is as guilty as his client.

Sometimes when attorneys are asked about defending a guilty client, their response is, "Every defendant deserves a good defense." This is, of course, nonsense, and the public knows it. Whoever commits an act as cold-blooded as bombing a public building not only does not deserve a good defense but deserves no defense at all. Whoever blew up the federal building in Oklahoma City deserves to be drawn and quartered as cheering throngs watch.

The correct answer to the question of why a defense attorney represents a person he or she knows is guilty is that we deserve (and have by our Constitution insisted on) a system in which every criminal defendant is entitled to a good defense.

The framers of the Constitution felt it necessary to protect the rights of the accused. They insisted that the criminal laws be well-defined and that a system of safeguards known as "due process" was in place to protect defendants' rights. They knew that tyranny has no better friend than a lax criminal-justice system.

Our criminal-justice system is on trial every time a defendant appears in court. This is as true in a case where a defendant's guilt is inescapable as it is in a case where there is serious doubt about the defendant's guilt. Because every good defense attorney understands the constitutional underpinnings of a good defense, they aren't torn by an ethical dilemma when they represent a guilty client. They also have an obligation to turn down a case when they find a defendant to be so odious that they wouldn't be able to mount an aggressive defense. This happened in the McVeigh case, and it became necessary to go outside Oklahoma City to find a defense counsel.

In truth, cases where the defendant appears innocent, rather than guilty, are the most difficult for defense lawyers. When a lawyer is reasonably certain of a client's guilt, a guilty verdict is not particularly disturbing as long as the attorney is certain that a good defense was mounted. A not guilty verdict is acceptable, too, not because it comports with universal notions of fairness, but because it's almost always the result of some breach of the system.

On the other hand, a defense attorney is likely to lose sleep over the conviction of a client he or she believes to be innocent. The attorney is likely to be hounded by the sheer unfairness of the result along with relentless self-questioning about the adequacy the defense.

The judge's job in the McVeigh case is to ensure that an unbiased trial takes place in conformity with all constitutional requirements. The prosecutor's job is to present the case in the most vigorous and compelling fashion possible within the bounds permitted by law. The defense attorney should do the same.

Until the jury returns a verdict, we should all presume that McVeigh is innocent and not question the motives of his attorney. That's the only way we can preserve our right to a criminal-justice system that is far worthier than many of the defendants who come before it.

James M. Kramon is a Baltimore lawyer.

Pub Date: 3/30/97

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