In Defense of Bin Laden’s Defense Team

If recent media coverage is any measure, the only thing more repulsive to the American public than Osama bin Laden himself is the person who would be called upon to defend Bin Laden were he to be found alive.

Just the appearance on lists of “possible” defense counsel is enough to trigger a dozen variations of the question, “How could you live with yourself if you got Bin Laden off?” People seem to want you to assure them that you would either not try very hard or that you are not very good.

For lawyers, there are no such easy options when asked by a judge to take on a despised client. Despite the universal desire for a speedy conviction, a zealous lawyer cannot adopt the role of the village idiot to better serve the ends of justice.

Americans have long been conflicted about the role of the criminal defense lawyer. As a society, we have made legal icons of some of them, ranging from Sir Thomas More and Clarence Darrow to fictitious figures like Atticus Finch of “To Kill a Mockingbird.” It is notable that all three of these figures are lawyers who fought the state, faced the mob or defended the unpopular client in the face of social ridicule.

It is also notable that all these characters are either fictitious or dead. It appears that defense lawyers are most popular when they are safely interred.

When a crime is recent and an injury is fresh, however, it too often is the ends and not the means of justice that take precedence. It is no accident that, in the case of all the mentioned legal legends, the heroic legal figures are resisting the same common foe: us. A lawyer who defends a vicious criminal robs a vengeful public of the certainty of justice--at least the kind of justice the public wants--when its desire for it is overwhelming.

Despite the stereotype of the publicity-seeking lawyer, most lawyers would rather drink molten lead than be the mouthpiece for the likes of Bin Laden. The moment that all lawyers dread is the call from some federal judge who wants to appoint you to “an understandably difficult case.”

Lawyers often have been absent without leave when called to such duty.

In the infamous case of the Scottsboro Boys in 1932, the court called upon any member of the local bar to step forward to represent the nine African American youths who were accused--falsely--of raping two white girls. The courtroom was filled with local lawyers, but silence followed. In quick succession, all of the accused men were then summarily tried and sentenced to death.

Like other citizens, attorneys sometimes yield to their darkest demons in moments of social unrest. And unlike Atticus Finch, who stood before a mob in front of a jailhouse, lawyers sometimes have been part of the mob, sometimes even leading it to “swift justice.”

Recently, a list was discovered in Georgia of the men who, in 1915, raided a prison and kidnapped Leo Frank, a Jewish factory owner falsely accused of the rape and murder of a young girl; Frank was hanged near the grave of his presumed victim. The list read like a who’s who of the Georgia bar, including the county judge and prosecutor.

In New Orleans in 1891, other lawyers, including a future president of the American Bar Assn., led a raid on the city jail. As thousands cheered, the vigilantes lynched or shot a dozen Italian Americans after their acquittal in the murder of the sheriff.

One does not have to be an attorney-vigilante to betray one’s oath and conscience as a lawyer. All that’s needed is to remain silent in the face of calls for “swift justice” or for ad hoc “tribunals” designed to ensure conviction. We need only look away as our political leaders arrange for extrajudicial forms of justice, unimpeded by our traditional legal process or by the long-enduring right to adequate representation.

Mob justice comes in many forms and, to paraphrase our president, if you are not defending the rule of law then you are against it.

*

Jonathan Turley is a law professor at George Washington University.