How can anyone defend James Holmes?

"How can anyone defend that guy?" I was asked today while watching the news about the Colorado theater shooter, James Holmes. "It's obvious he's guilty," they continued, "and defending him is like defending pure evil." The question was not directed at defending what Holmes did in the theater, which by any standard is indefensible, but toward defense attorneys who defend "obviously" guilty people in a courtroom. Since starting law school a few years ago I often encounter this question, buzzing around like a fly that can't quite decide where or if to land. It's a good question to think about. How can a person defend someone they know is guilty of a horrible crime? And why would they want to?

 This time, that question seemed to drop like a pail into a well.  And today, if for no other reason than to justify my school loans, I felt the need to try to reel up some kind of an answer. Why, I wondered, did John Adams defend captain Preston and those British soldiers after the Boston Massacre? Why did anyone defend Charles Manson, Jeffrey Dahmer, or Timothy McVeigh? Or, perhaps a better question to ask is why anyone bothered to defend Mary Surratt or the West Memphis 3?   

Wondering who could defend a person guilty of a horrible crime raises a related question: do only the innocent or potentially innocent deserve to be defended?  If so, are we not simply suspending a person's Constitutional rights at the exact moment they may need those rights the most? Such a practice not only discriminates in the application of Constitutional rights, it also runs afoul of the idea that people should always be "presumed innocent until proven guilty." To invert that legal axiom is to make our Constitutional protections only as assured as a persons guilt is certain in the eyes of a mob. The result would wind the legal clock back to the days of the Salem Witch Trials, where the only evidence a person could offer to prove their innocence came in the form of their own lifeless corpse.

Such Draconian standards require that a defense attorney place him or herself between the guilty and the guillotine. One reason for doing so is because the "guilty" are not always as guilty as they may first appear. And even if they are, the rules regarding the prosecutory process need to be protected by someone other than those seeking to behead the accused. When Mary Surratt was convicted and sentenced to be hanged, for example, it was unclear to what extent she was involved in the conspiracy to assassinate Abraham Lincoln. Lincoln assassination scholar Thomas Reed Turner described her conviction as "the most controversial...at that time and since." Likewise, the convictions of Damien Echols, Jason Baldwin, and Jessie Misskelly - otherwise known as the West Memphis 3 - is a prime example of how, in the name of justice, a system bent on revenge can sometimes trample over facts, evidence, and procedure, just to appease an outraged community by putting sacrificial heads on the chopping block.

Mary Surratt was the first woman ever to be executed by the United States in July of 1865. The West Memphis 3, mere teenagers when convicted for the murder of three young boys in 1994, spent 18 years in prison for a crime they didn't commit. Defending Surratt and the West Memphis 3, in hindsight of course, are easier choices to defending James Holmes. While the former are examples of people being accused of horrible crimes, the latter actually admitted to doing it. So, once again, we are left with the question: how can anyone defend Holmes in good conscience, and why would they want to?

There may be as many answers to this question as there are lawyers to ask. One answer, for example, is simply the potential for fame and fortune. As ignoble an answer as this may be, the fact remains that a big crime often serves as a powerful vehicle for obscure defense attorneys to make a name for themselves. Examples include Robert Shapiro and Johnnie Cochran of O.J. Simpson fame, and Jose Baez from the Casey Anthony trial. In a free market system of justice, crime really can pay, especially for the defense attorney.

Another reason is that sometimes a particular defense attorney may really believe their client is innocent, despite overwhelming appearances to the contrary. Or, as in the case of Mary Surratt, a defense attorney may choose to defend someone they know or suspect is guilty simply to check the powers of justice that, if unchecked, might indiscriminately consume both the innocent and the guilty alike, and with equal ferocity.

Checking this indiscriminate lust for justice is often the only compass available to a defense attorney when defending someone they know is guilty. Lady Justice is blind, after all, and her scales are too often unbalanced by the political climate, passions inflamed by media myth making, a rabid desire for revenge, or any number of other variables that have little to do with finding truth or determining guilt.  The role of the defense attorney therefore is, in part, to ensure that the crime for which a person is accused is not repeated in the courtroom out of a misplaced sense of revenge masquerading as justice.

So how can anyone defend James Holmes? By understanding that an unwillingness to defend the guilty diminishes our ability to protect the innocent by eroding the distinction between the guilty and the accused. That erosion lead to the unjust execution of Marry Surratt and the conviction of the West Memphis 3. In fact, in its worst forms, it has the potential to become even more dangerous to a society than the criminals themselves.  Lynchings in the South, the horrors of the Inquisition, Stalin's purges, and the Killing Fields of Cambodia, were all exacerbated by the belief that being accused was practically the same thing as being guilty.  Defending James Holmes, therefore, helps to protect society as a whole from the horrors that have ravaged the innocent throughout history, under the color of law, even if those protections must be forged, like a brick in a wall, one guilty suspect at a time.