Letter to Los Angeles Times

(8-16-94)

By Randy Schoenberg

Estrich misses the point in arguing that defense attorneys face an ethical dilemma because they cloud the “truth” when defending their clients. The penal system, as its name suggests, is not about “truth”, but about “penalties”. A finding of guilt does not unrape the victim, it puts the rapist in jail. Our penal system is premised on the concept that the state cannot penalize a person unless it can prove beyond a reasonable doubt that the person is guilty. It matters not whether the person is actually guilty or innocent; if the state cannot meet its burden, it cannot punish. The defense lawyer’s role in this system is to check the power of the state to penalize.

A good defense attorney, therefore, is rightly unconcerned with what he or she believes is the ”truth”; his or her concern is whether the state can prove its case. As Estrich well knows, there are often larger issues at stake than the guilt or innocence of a single defendant. If we deny a defense to defendants when a confession is beaten out of them by the police, or when, as in the Simpson case, the police illegally enter a person’s home to obtain evidence, then we deprive ourselves of the protections against abuse of power by the state that our Constitution rightly guarantees and that people in less fortunate countries so desire.