Defense attorney volunteers to represent terrorist
The United States Supreme Court's decision in Boumediene v. Bush has sparked a good bit of new debate on the tension between civil liberties and National Security. Yesterday's Chicago Tribune article about how Chicago defense attorney Thomas Anthony Durkin volunteered to represent Ramzi Binalshibh was timely.
Military prosecutors seek the death penalty against Binalshibh, who is one of only five "high value prisoners" being held at Guantanamo Bay, Cuba. Prosecutors say Binalshibh helped to plan the 9/11 attacks. Binalshibh has said that he wanted to be a part of the 9/11 attacks but was not able to make it, and he says that he has "been seeking martyrdom for five years."
One of the most common questions criminal defense lawyers get is "how can you defend those people," or "how can you defend someone if you know they are guilty?" There are many answers to this question. Those people are usually just people, like you or me or Joe next door. They are people like members of our family or friends we remember from high school.
There are few cases where I know that my client is guilty. There are also cases where I know that my client is not guilty. Why I defend those people should be fairly obvious.
There are many more clients who I am not sure whether they are guilty or not. And if I, the person closest to the case, have doubts as to their guilt, then I have an absolute duty to convey that doubt to the prosecutor and to a jury if necessary. When we convict persons despite having doubts as to their guilt, our justice system has failed. We have chosen as a nation to not convict persons when there is doubt as to their guilt, to protect against the wrongful conviction of innocent persons.
I have found that guilty and not guilty is not that clear cut at times. There are shades of guilty. There are people who technically have committed a crime but there was good reason for it (if you walk in on your wife naked in bed with another man and you slap her in the face, you are now technically guilty of CDV). There are people who have committed a crime under the law but the punishment does not fit the crime they have been charged with (mandatory minimum sentences for 1st offense drug crimes). A conviction in some cases would work an injustice even if the person is guilty. There are some laws and penalties on the books that a large part of our society believes should not be enforced.
But then there are some clients who not only seem to be guilty beyond any doubt, but appear to have committed the most heinous of crimes. Child molestation, unprovoked murders, mass murder in the case of the 9/11 attacks. Why do we represent these people? The most common answer I give to people is because if we give the worst of the worst, the most despicable client, the best defense possible then I know that certainly when you or I are on trial for a crime that we may not have committed, we will also get the best defense possible.
As Durkin said to the Chicago Tribune, "Binalshibh must be defended because doing so is in keeping with the highest ideals of American law." "Anybody can give law to his friends -- it's the essence of law to give it to our enemies," Durkin says, quoting Supreme Court justice Felix Frankfurter.
