There was an op-ed in the Daily News yesterday that had harsh things to say about Bill Cosby. Of course, he deserves it. The op-ed also referred to Cosby’s lawyers as “soulless.” What did they do to merit such criticism? They’re defending Bill Cosby.
It’s understandable that people don’t care much for criminal defense lawyers, especially those who are defending the alleged perpetrators of horrible crimes. But the criminal defense lawyer is an important part of the criminal justice system. There are certain rights that you never forfeit, even when you’ve committed a heinous crime, and it is the role of the criminal defense lawyer to protect those rights for you. And if you’re not sold on due process, then just wait until you or someone you know is accused of a crime you didn’t commit. It happens.
In the adversarial system, each side puts forward as a strong a case as possible, and then after both sides have been heard, a decision is made. If you’re an attorney for one of the parties, it is your duty to fight on behalf of your client. The system collapses if you don’t. The idea is that the stronger case should win, and that if both cases are well-argued, the truth should come out on top. Obviously, it doesn’t always work this way, but we don’t have a better alternative. The only thing worse than the system is everything else.
We need the adversarial system and criminal defense lawyers for the same reason that we need free speech. If we impose restrictions on what can and cannot be said, then we limit the ability of society as a whole to work out what is true. Discourse is a battleground for ideas. Our goal in discourse should be to find which ideas are the best. The only way we can do that is by making sure they’re all included in the ring. We have to trust that the weak ones will be killed off, and that the strong will prosper. Of course, there’s no guarantee of this. We need to accept it on faith.
But the alternative to having faith in the effectiveness of discourse is to have faith in those individuals or groups who act as censors, deciding what ideas are allowed to be shared. We would effectively be trusting people to rig the game in a way we find unobjectionable. Perhaps this round’s game-masters will be favorable to us, but the next round’s might not.