Randy Barnett, currently a professor of Legal Theory at Georgetown Law, and former Cook County State’s Attorney prosecutor, writes an excellent piece in today’s Wall Street Journal “Three Cheers for Lawyers”:

The crucial importance of defense lawyers was illustrated in the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper’s highly unusual affirmation of the defendants’ complete innocence…

Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done.

This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you’ll think of the lawyers who represented these three boys and it won’t seem so funny.

Barnett also talks about how, as a prosecutor, he always analyzed cases from the defense perspective, in terms of the evidence, procedure, and credibility of the witnesses.

Good defense lawyers, of course, analyze their cases from the prosecutor’s perspective as well. Even though most cases end up in some form of a plea bargain agreement, even if it’s a reduction or dismissal of charges in return for community service, both sides must properly evaluate the relative strengths and weaknesses of their case.

And Barnett acknowledges the ugly truth about the criminal ‘justice’ system: that there is a human (and factually based) presumption of guilt. Since judges/prosecutors/defense attorneys know that in the end most folks are actually guilty as charged, it becomes easier for everyone to skip over the actual fact finding necessary to make such a determination:

While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

And therefore, the continuing need for criminal defense lawyers. But it’s nice to hear it from a prosecutor’s perspective.

[Hat Tip: Philadelphia Criminal Defense Lawyer]

  • Jamie —

    Great blog. I’ve commented in my blog on what Barnett left out of his explanation.