Wikimedia Gregory Peck as Atticus Finch and Brock Peters as Tom Robinson in the 1962

film adaptation of “To Kill A Mockingbird”

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn’t like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

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A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney. The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine’s part. We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

A long tradition in U.S. system

Representing unpopular clients has a long tradition in the American legal system. John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation. Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.” John Adams was elected president of the United States. In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?

Judge Kevin S. Burke

Paul Clement was a superstar appellate lawyer in the Bush administration. After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman. Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, “Representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder. Holder said, “In … representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best … [the] criticism, I think, was very misplaced.”

“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”

Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court. The confirmation process has become quite partisan. Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?

More examples: Debo Adegbile and Steve Jones

In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile’s nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them. “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters. After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?

Steve Jones was a seasoned trial lawyer in Oklahoma who was asked by the court to represent Timothy McVeigh, the Oklahoma courthouse bomber. As a young lawyer, Jones had represented a student who was arrested the day after National Guardsmen killed four students at Kent State University. Jones’ client was charged with carrying a Viet Cong flag in violation of a state law prohibiting the display of a red flag or emblem of anarchy or rebellion. After 12 lawyers had refused to defend the student, Jones took the case and was promptly fired by the law firm where he worked.

Jones knew the risk of representing McVeigh. “When I agreed to represent Mr. McVeigh, I felt it important that a trial lawyer from the Oklahoma bar be ready to accept the court’s appointment. If no competent or experienced trial lawyer in Oklahoma was willing to defend Mr. McVeigh, it would have been a black mark not only against justice, but against the bar association and ultimately our state and society.”

For this representation, he said, “I was demonized, ostracized and exposed to physical and economic risks. The FBI investigated threats against my life, and I had no less than half a dozen serious security incidents at my home. I placed a loaded revolver in my office desk drawer and a loaded shotgun in my closet at home. Because of threats, another lawyer on the defense team was authorized to carry a concealed weapon. My family had armed guards on our property for 2½ years, motion detectors, electronic eyes, unlisted telephone numbers and emergency-response numbers. A law practice of 25 years was destroyed. It took me seven years to build it back to pre-1995 levels.”

‘Guilt by client’

Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden’s appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”

While the legal ethics that govern lawyers’ conduct today encourages lawyers to represent unpopular clients, the history of the American Bar Association is noteworthy. At a McCarthy-era American Bar Association convention, the ABA declared that any attorney representing a person associated with the Communist party was unworthy of membership in the bar, and even demanded that lawyers take loyalty oaths. Subsequently, when the civil rights movement highlighted that racial and political minorities were denied equal access to the courts, the bar promulgated rules stating that a lawyer’s representation does not constitute endorsement of a client.

It’s about our system of justice

Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.

John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church.

What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.

Kevin S. Burke is a trial judge on the Hennepin County District Court and past president of the American Judges Association.

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