Friday, November 17, 2006

Strange morality?

Elliott notes that WaPo columnist Eugene Robinson once praised Johnny Cochrane for being good enough to get OJ off, but now condemns Judith Regan for publishing his "hypothetical" confession and Fox TV for airing her interview of the Juice. Which is worse, Elliott asks, "a book and television program that basically prove that O.J. Simpson got away with murdering two people……or the lawyer who exploited a black jury’s reverse racism to help him get away with it?"

Given the ethics of my profession, I should have a clear answer. Regan was wrong and Cochrane was right. A defense attorney can't do "anything" to get his or her client acquitted, but nothing that Cochrane did was out of bounds. He exploited the racial atmospherics of the trial, he baited Chris Darden into one of the dumbest lawyer tricks of all time and he made Mark Fuhrmann into one of the more celebrated red herrings in the annals of legal history, but that is what our system allows.

Before you say that "legal ethics" is an oxymoron, I hasten to add that the system has its own internal ethic; it's own sense of right and wrong. As long as you don't do things like lie, suborn perjury or fabricate evidence or bribe witnesses, you can (essentially) try to persuade a jury of something that you know isn't true. The ethic of this is rooted in a sense that government is imperfect and the best way to keep the state honest in criminal matters is to require it to prove its case over an aggressive advocate working hard to take it part. It is rooted in the old notion that it is better for a guilty man to go free than for an innocent one to be convicted.

This is not a system that is amoral or unconcerned with ethics. The problem is that it's ethic is not one that we all share. The problem is that, sort of like capitalism, what is thought to be the best result is often produced by nasty means.

I think I have blogged on this before, but, when I taught at UWM, I'd show the class a scene from Al Pacino's old movie And Justice For All. Pacino is a criminal defense lawyer who spends most of the movie struggling against the seeming amorality of the system. He is blackmailed into representing a judge charged with sexual assault and learns that his client is guilty. In the middle of an opening statement in which he chronicles the absence of any evidence of his client's guilt, Pacino stops to ponder the fact that the victim has identified him. Why would she lie? In typical overwrought Pacino fashion, he says:

The one thing that bothered me, the one thing that stayed in my mind and I couldn't get rid of it, that haunted me, was why. Why would she lie? What was her motive for lying? If my client is innocent, she's lying, why? Was it blackmail? No. Was it jealousy? No. Yesterday I found out why. She doesn't have a motive, you know why? Because she's not lying... And ladies and gentlemen of the jury, the prosecution is not going to get that man today, no, because I'm gonna get him! my client,(turning and pointing) the Honorable Henry T. Fleming, should go right to f***ing jail! The son of a bitch is guilty!

Chaos ensues. This is a moment of catharsis for the audience. Pacino has finally got it right! He's finally acted like a human being! But, of course, all he has done is cause a mistrial and forfeited his license to practice law. In doing what we were all rooting for him to do, he has behaved unethically.


Anonymous said...

I understand how our adversarial legal system is supposed to work. It doesn't mean I have to like it. :p

And I still contend that there is little moral difference between a lawyer who tries to obscure the truth for profit and a media company that will exploit the truth for profit.

The Badgerland Conservative said...

That was one of the most powerful courtroom scenes ever filmed.

Anonymous said...

We can agree that what Cochrane did was legal and even professionally appropriate given the important function played by defense attorneys in our legal system.

But we can nevertheless say that what Cochrane did was shameful because he exploited the "race card" to achieve a miscarriage of justice.

To use your capitalism metaphor, he is like the pornographer who increases total utility by satisfying a want but does so in a shameful way by pandering to prurient tastes. We allow the behavior because it (allegedly) increases the common good, but this method of making money is dishonorable. So, too, was Cochrane's method of defending OJ.

In philosophical terms, Cochrane had "a right to do wrong." We must respect the right he has to do what he did, but we can still say that what he did was substantively wrong.