The Duty Owed to the Guilty and Innocent Alike

The Sixth Amendment of the United States Constitution requires that "in all criminal prosecutions," the accused shall have "the assistance of counsel for his defense." That means anyone charged with a crime is constitutionally entitled to have an attorney defend them against the charges.

Many people charged with crimes are innocent. Many are guilty of heinous acts that offend the mind and turn the stomach. Nevertheless, the requirement that a person accused of a crime be represented by an attorney is unaffected. There is no "unless they're actually guilty clause" or "unless they're accused of something really nasty exception" to the Sixth Amendment.

Meanwhile, attorneys hired by or appointed to the accused - like all attorneys - are bound by the ethical rules of our profession. Those rules vary from state to state, but for the most part, they are very similar. And they all include a requirement that each attorney provide the best representation to their clients that they possibly can.

For example, the ethical rules for Kentucky attorneys require diligence. In the words of the Kentucky Supreme Court, that means:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.

Granted, attorneys aren't required to pursue any and all strategy imaginable to defend their client. They do retain some professional discretion as to strategy and tactics, may disagree with their clients, and must treat the court and other attorneys with respect. But the underlying requirement of diligence is a strong and important one - each person represented by counsel is owed a vigorous representation of their interests.

For those accused of a crime, avoiding conviction or minimizing the sentence they might receive upon a finding of guilt is their primary interest. To that end, criminal defense attorneys should pursue all "lawful and ethical measures" to reach a favorable result for their clients. Again, this is regardless of the details of the charges or the possibility that their client is actually guilty.

These constitutional and ethical requirements are the linchpins of our adversarial criminal justice system. That's why this post, by former Supreme Court clerk Carrie Severino, is so heinous and wrongheaded. In it, she attempts to smear potential Supreme Court appointee Jane Kelly. Kelly is a former public defender who now serves as a judge on the United States Court of Appeals for the Eighth Circuit, one level below the Supreme Court in the federal judiciary.

As Severino points out, in a faux-clinical way, Kelly once represented a convicted felon named Casey Frederiksen. As she was bound to do, Kelly defended Frederiksen and worked to get him a lighter sentence than the maximum allowed for his crimes. But Severino says these facts are "less convenient" than others that favor Kelly's nomination, insinuating that Kelly doing her job as a defense attorney should work against her.

There is no inconvenience in the fact that Kelly, by all accounts, vigorously represented her client to her best ability. That is what good lawyers do, even when they have bad clients. Unless Ms. Severino knows of legal or ethical violations committed by Kelly during the course of her representation of Frederiksen, her criticisms read like a cynical, political effort to unfairly smear a fellow member of the bar.

That, unlike anything Kelly is accused of doing, is unbecoming of an attorney.