O\u27Neill, Brian

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Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews11-1-1996The Responsibility of the Criminal Defense Lawyerin 1996Brian O'NeillThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationBrian O'Neill, The Responsibility of the Criminal Defense Lawyer in 1996, 30 Loy. L.A. L. Rev. 89 (1996).Available at: https://digitalcommons.lmu.edu/llr/vol30/iss1/12THE RESPONSIBILITY OF THE CRIMINALDEFENSE LAWYER IN 1996Brian O'Neill*While participants in this Symposium will address other as-pects of the criminal lawyer's responsibility, I would like to focuson the responsibilities of lawyers in the existing political climate.The lawyers' responsibilities to the law require them to stand up tothose in public life who, for political advantage, would diminishthe law's protections.The political rhetoric of 1996 is laced with references to thevery real problem of crime in America. "Taking back our streets,""breaking the cycle of drugs and crime," and "making our citiessafe again" have been identified as political goals in this presiden-tial year. These political goals reflect the public's understandablefear of violent crime. In such an atmosphere even the most ex-treme public safety measures will be seen as fair and reasonable.Thus, politicians continue to press for increasingly stiffer penaltiesfor crimes. They show little enthusiasm for addressing the relatedproblems of the breakdown of the family, the failure of the publiceducation system, and the lack of effective gun control.Office seekers from both parties regularly attack judges whouphold the constitutional rights of the accused against prosecuto-rial and police excesses. Prosecutors, aided by courts, assault theSixth Amendment right to counsel with as much zeal as they dothe Fourth Amendment right to privacy.It is often said that "these are critical times," and sometimesthey really are. The public furor over crime and the political re-sponse to it make this a truly critical time for our country and forthe criminal defense bar. The two specific problems confrontingthe criminal justice system in the mid-1990s are: (1) the govern-* Partner, O'Neill, Lysaght & Sun, Santa Monica, California. Mr. O'Neill is aformer federal prosecutor who represents individuals and business organizations incriminal investigations and trials. He is a co-author of West's California CriminalLaw and has published widely in the areas of criminal law and criminal procedure.90 LOYOLA OF LOS ANGELES LAW REVIEWment's trampling of the most significant civil right, the right of pri-vacy; and (2) the government's continuing attack against thosewho assert that right, the criminal defense bar.Orwell's 1984 and Kafka's The Trial2 dramatized the harmcaused to individuals by an oppressive state seeking to impose itswill. The fights of individual citizens were taken from them, andthe state became all powerful at the expense of individual liberties.Indeed, in the societies these novels portray, the individual ceasedto have any private life at all.The governments in these two novels were evil governmentswith evil designs. Recent years have seen a benign, well-inten-tioned government bent on stamping out crime and winning a "waron drugs" by engaging in the same conduct as the evil governmentsof 1984 and The Trial, with the same consequences to individualfights.Admittedly, the courts are under great pressure to enforcepenal sanctions against those accused of a crime. And fortunately,our system is one where most of the persons charged with crimeshave indeed committed the crime charged. When presented withdifficult issues in criminal cases, courts are asked to decide be-tween enforcing an abstract constitutional right such as the right toprivacy, knowing that the defendant at bar may escape liabilitythereby, or declining to enforce the right so that someone whoprobably is guilty can be convicted and punished.At other difficult times in American history, however, ourcourts have courageously upheld basic constitutional rights againstinvasion by the government notwithstanding the unpopularity ofthe decisions. For example, the United States Supreme Court hasstruck down loyalty oaths as preconditions for employment evenas Senator Joseph McCarthy terrorized public officials with disclo-sure of their lack of loyalty in the so-called "war on communism."And, during the worst part of World War II-a real, honest-to-God war-the Supreme Court upheld the right to refuse to salutethe flag.4Why, then, have courts recently been willing to sustain anygovernmental imposition on citizen rights that interfere with the1. GEORGE ORWELL, 1984 (The New American Library 1961)(1949).2. FRANZ KAFKA, THE TRIAL (Willa Muir & Edwin Muir trans., SchockenBooks 1974)(1937).3. Wieman v. Updegraff, 344 U.S. 183 (1952).4. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).[Vol. 30:89November 1996] RESPONSIBILITIES OF CRIMINAL DEFENSE 91successful prosecution of the war on drugs? The answer is that thejustice system depends upon the public's acceptance. The publicexpects the efficient resolution of cases, the consistent achieve-ment of just results, and the conviction of the guilty. In recentyears in response to increasingly visible violent crime, the publichas demanded the conviction of the guilty without much concernabout how that goal is achieved. The fear of crime obscures thefact that a shrinking Constitution will affect us as adversely ascrime itself.At the same time, the belief that much of the crime problemcould be solved if drug trafficking were suppressed has spurredCongress to spearhead the war on drugs, with the state legislaturesfollowing in Congress's wake. Just as real wars destroy the socialfabric, so too has the war on drugs damaged the Constitution. Pri-vacy, one of the fundamental civil rights of the Constitution, isironically most at risk in the criminal setting. It is almost exclu-sively in the criminal context that the government asserts its rightto invade privacy, and therefore, it is the criminal lawyer who mustprotect this most sacred right.It is the responsibility of the criminal defense lawyer to pro-tect against the further erosion of constitutional rights even when,due to changing attitudes, the criminal lawyer becomes the targetfor investigation and prosecution. Thus, the criminal lawyer musthold the government to the Constitution when it misbehaves andmust do so relentlessly-not yielding when the pressure is raised.To do so today is a much riskier proposition than it once was. Acasualty of the war on drugs has been the relationship between thelawyers who prosecute crimes and the lawyers who defend the ac-cused. The enforcers, prosecutors and police both, more than atany time in the last half-century, view criminal defense lawyers ascollaborators with the enemy in the war on drugs, a fifth columninconveniently guaranteed by the Constitution to the accused.It appears to be the case across the country that prosecutorscarrying out the mandates of the war against crime are imbuedwith the nobility of their cause to such an extent that they nolonger regard their brothers and sisters across the courtroom asprofessional colleagues. Rather, they view them as the morally in-firm aiders of the criminally culpable. One prominent Los Ange-les prosecutor, for example, refuses to address any criminal de-fense lawyer by name because of his view that they, like thecriminals he prosecutes, are unworthy of being personally ad-92 LOYOLA OF LOS ANGELES LAW REVIEWdressed.Courts have all too often adopted the same view of lawyers forthe accused, and have responded positively to prosecutors' de-mands that defense lawyers be shoved out of the way or intimi-dated into silence. A litany of developments in the law concerningcriminal lawyers over the last twenty years includes some of themost constitutionally shameful misconduct imaginable in a systemof law:(1) Unsupervised search of lawyers' offices;(2) Indictment of criminal lawyers for providing legal adviceto unsavory defendants;(3) Seeking contempt charges for statements to the pressmade by defense lawyers, although the prosecution is immunefrom such charges;(4) Calling the client's lawyer before the grand jury to offertestimony against the client;(5) Using lawyers' fees to prove tax cases against their cli-ents; and(6) Attacking joint attorney-client privilege agreements.One always hopes that the courts will intervene and calmtempers. However, the appointments to the state courts, in Cali-fornia at least, are remarkable for a homogeneity that does notaugur well for those accused of crime or their lawyers. The newjudges are drawn almost exclusively from a district attorney's of-fice or the United States Attorney's Office.' Typically, these law-yers entered the district attorney's office immediately from lawschool, and remained there until their appointment to the court.6The assistant United States attorneys have only slightly broaderbackgrounds, having generally gone to the United States Attor-ney's Office after a few years at a large corporate law firm.7 Thus,our bench increasingly is peopled with lawyers who have exclu-sively represented large institutions such as corporations or thegovernment. A judge with such a narrow base of experience mayeasily fall into the trap of accepting the arguments made about themorally inferior status of the criminal defense lawyer.5. See JUDICIAL YELLOW BOOK 618-41 (Leadership Directories, Inc. Spring1996).6. Id.7. Id.[Vol. 30:89November 1996] RESPONSIBILITIES OF CRIMINAL DEFENSE 93This is the world we face in 1996. It is not a good situation forthe body politic. The criminal defense lawyer bears the major re-sponsibility of responding to the overreaching prosecutor and theall-too-compliant judiciary. The defense lawyer has the responsi-bility to hammer home to the courts, the prosecutors, and to thepublic, the basic, but often forgotten, point that the integrity of theConstitution is more important than an immediate victory in thewar on drugs. While this responsibility is not the lawyer's exclu-sive mission, there are few other groups with the training to fightthis fight, or the forum in which to fight it.The stakes are very high-as observed by the English play-wright Robert Bolt in his brilliant play about the moral dilemmafaced by Sir Thomas More.8 More was confronted by Roper, azealous young attorney who urged the prosecution of RichardRich, a political rival of More's. More declined, stating that thedevil himself would be immune from prosecution until he brokethe law. There followed this exchange between More and Roper:ROPER: So now you'd give the Devil benefit of law!MORE: Yes. What would you do? Cut a great roadthrough the law to get after the Devil?ROPER: I'd cut down every law in England to do that!MORE: Oh? And when the last law was down, and theDevil turned round on you-where would you hide,Roper, the laws all being flat? This country's plantedthick with laws from coast to coast-man's laws, notGod's-and if you cut them down-and you're just theman to do it-d'you really think you could stand uprightin the winds that would blow then? Yes, I'd give theDevil benefit of law, for my own safety's sake.9Government has a tendency towards the exercise of power-agood government wants to stamp out crime and will tend to exer-cise power to achieve that goal. For example, our governmentkidnapped a Mexican citizen whom it suspected of aiding in themurder of a drug enforcement agent, 0 and our government plotted8. ROBERT BOLT, A MAN FOR ALL SEASONS (1960).9. Id. at 66.10. Steven A. Holmes, U.S. Gives Mexico Abduction Pledge, N.Y. TIMES, June22, 1993, at All.94 LOYOLA OF LOS ANGELES LA W REVIEWthe kidnapping of an American commodities broker living in Swit-zerland whose extradition was denied by the Swiss Court.' Bothwere cases wherein the government was tempted to use power toachieve a good end. In both cases the government overstepped itsconstitutional authority, clearly demonstrating that a governmentis most dangerous when it is pursuing a worthy end. It is not wor-thy of our government to deprive the criminally accused of theirrights-it is just easy to do so.Our Constitution was meant for everyone-not just the so-cially acceptable. If the rights of the criminally accused are notprotected, the winds that blow across the land to topple the FourthAmendment will next topple the Fifth Amendment, the SixthAmendment, the attorney-client privilege, and any other shieldagainst government intrusions. And when these too are gone, whowill be safe against the power of government?11. Greg Hitt, Bond, Treasury Bond: Top Enforcer Mulled Plot to Kidnap Fugi-tive Trader, WALL ST. J., June 13, 1996, at A6.[Vol. 30:89

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