Should a lawyer defend someone in court whom he thinks is guilty?
What if the man is truly despicable (e.g., a murderer)?
The typical secular legal system is an adversarial one, in which the competing interests of the prosecutor to seek conviction and of the defense attorney to seek exoneration are what are expected to bring the truth to light. Simply stated, the desire of the respective sides to win serves as the motive force that helps clarify the defendant’s guilt or innocence.
In order for the system to function properly and for bias and prejudice to be eliminated from the judicial process, it is therefore absolutely critical that every accused person receive the most robust legal defense possible. Thus, even if a particular attorney suspects his or her individual client is guilty or wicked, it is that lawyer’s responsibility to the justice system as a whole to provide the best arguments available on their behalf.
Of course, having slick professional lawyers attempt to outwit one another in court is not the Torah way. Nevertheless, we still find a halachic mandate to seek to exonerate the accused if any doubt exists as to his or her guilt. This is particularly true in capital cases, where we are commanded to do anything in our power to avoid imposing the death penalty. While we must strive to protect society from evildoers and criminals, we must still bear in mind that the ultimate judgment rests with Hashem, and resort to punishing our fellow human beings only when we are left with no other option.
– Rabbi Joshua Maroof received semicha from Yeshiva Bnei Torah in Far Rockaway, NY, and has a Masters in Educational Psychology from CUNY. For seven years prior to making aliyah, he served as one of the rabbis of the Mashadi Community in Great Neck, NY, and as head of their Sephardic Bet Midrash. He currently resides in Carmei Gat, Israel, with his wife Elana and their six children. His lectures, shiurim and writings can be found online on soundcloud.com under Yeshivat Death VeHaskel and at http://www.ydvh.org.
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A lawyer in most democratic countries is charged with upholding the laws of the country, its constitution and the laws that govern the very court system before which he practices; he is considered an officer of the court. Unless he/she is a court appointed lawyer, where he is bound by a judge’s orders in the matter of defendant representation, he/she may pick and choose the cases to defend. No one forces anyone to do what he does not want to do. That is a matter of free choice.
Now, enshrined in our legal system is the presumption of innocence, a person is deemed innocent until proven guilty. This happens to be the Torah view, upon which much of modern civil and criminal law finds its source. The Torah in Parashas Shoftim (19:15) states that a single individual who witnessed a punishable infraction his testimony in the matter is invalid; it is only where two or three witnesses saw the event that after their testimony the person’s guilt is established.
Even so, the Talmud (Makos 7a, the Mishna) states that a Sanhedrin that carries out the death penalty once in seven years is considered to be destructive and R. Eleazer b. Azariah alters to once in seventy years. This means that Jewish jurisprudence was to seek out some sort of merit for the accused and thus very rarely was a death sentence imposed.
Thus, we see that even one charged with a capital punishment is not only entitled to representation of counsel but such is mandated.
As we noted, an attorney practicing law in the modern democracies and the United States for sure would represent one charged with a capital crime, even where he himself has his own doubts as to the person’s innocence. His service to the client may be to help him negotiate a less severe punishment. Thus, since there is the presumption of innocence until proven otherwise, it is proper for one to represent the “despicable” individual. Yet as we noted, that decision is up to the individual lawyer no one forces him to accept such a client. However, if he chooses to defend such an individual he can hardly be faulted as doing the despicable, for that is his raison d’etra.
– Rabbi Yaakov Klass is chairman of the Presidium of the Rabbinical Alliance of America; rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn; and Torah Editor of The Jewish Press. He can be contacted at [email protected] and [email protected].
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This is a very complex question and has a number of elements to it. First, we must recognize that we are extremely blessed to live in a country where the average citizen has freedoms and rights that are historically unprecedented. Guaranteed by a constitution and protected by the courts, we enjoy lifestyles, affluences, and the ability to live exactly how we choose, as mankind has never had before. Clearly the American court system is major part of that.
One of the premises of the American court system is adversarial litigation. The concept being that if each party does its best to argue the merits of the case, an impartial judge will be able to determine which is the more truthful side, which is the more accurate and justice will in the end prevail. That being said, as it is a system of justice, if one is functioning within that system, even if he knows his party is guilty, he is obligated contractually and morally to do his best job of presenting the innocence of his client, as that’s what he is being paid to do and that’s what is expected of him. Anything less than that would be a violation of legal obligations, as well as of morality.
The question ultimately is, should one engage in that type of practice, and if he knows his client is guilty, should he recuse himself. One would be hard pressed to say that defending a person who you know is guilty would be corrupt or wrong, as it functions within a legal system. However, there is a certain understanding that this is something that sounds almost like it is abusing the system, corrupt, unethical and wrong. It is certainly something that damages someone’s sense of integrity and honesty and on a personal level could be very damaging to the person who is doing it.
Certainly, if a person could avoid such a situation, he should, and certainly he would be better off not being involved in that. However, if he finds himself in a situation where he can’t, unfortunately it would seem that the right thing would be to defend his client because that’s what he is being paid to do and that is his legal and moral obligation. Bottom line is, there are much better alternatives for a Jew, many other areas of law, many other ways to practice, and a person should do anything in their power to avoid being in that situation.
– Rabbi Ben Zion Shafier is founder of The Shmuz and author of 10 Really Dumb Mistakes That Very Smart Couples Make (available at theshmuz.com).
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There are two different schools of thought as to whether a lawyer should defend someone if the lawyer knows that his client has committed a crime. The two opinions are based on a discussion in the Talmud (Masechet Nidda 61a), when Rabbi Tarfon refused to assist Galileans who were rumored to have killed someone. Tosafot and Rabbenu Asher explain that Rabbi Tarfon was concerned that the government would punish him for helping these people. As such, any help which the government allows, such as serving as a defense attorney for the individual, would be permitted. However, Rabbi Shlomo Luria argues that one may only do so if the guilt of the defendant is in doubt and not in cases of known guilt. Based on this ruling, Rav Hershel Schachter has ruled that a lawyer may not help his client escape the consequences of his crime if the lawyer knows that his client committed a crime.
However, Rav Yaakov Ettlinger does not agree with Rav Luria’s limitation above and he does not distinguish between whether the guilt is known or only doubtful. He rules that an individual may provide any help to an accused which the government allows. According to Rav Ettlinger, then, a lawyer may defend someone in court whom he knows to be guilty. Even if the client is truly despicable, Rav Ettlinger would argue that a lawyer should provide a spirited defense for him because our society gives each citizen the right to be vigorously defended in a court of law, a constitutional value of due process that emanates from a sense of societal justice which we should pursue.
– Rabbi Jonathan Muskat is the rabbi of the Young Israel of Oceanside, a rebbe at Shulamith High School, and a pastoral health care liaison at Mount Sinai South Nassau.
