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Wouldn’t it be great if the voting public analyzed a candidate’s positions on the issues, compared them to the positions of the opponent, and then voted for the person whose positions most closely mirrored their own? This is the way it would work in a perfect world. Unfortunately, this world is not perfect; at least it wasn’t the last time I checked.
As I reflect on the recent mid-term elections, I realize that the campaigns for seats in Congress and state legislatures were more negative that I can ever remember. And some of the most vicious attacks were reserved for candidates who, at some point in their careers, had been criminal defense lawyers.
In the race for district judge of Somerset, Ky., candidate Jon Gillum disseminated campaign materials that maligned opponent Katie Woods because she had represented a man who shot a law enforcement officer. Our Constitution affords legal representation to all, even those accused of heinous crimes that elicit strong reactions from the general public. Woods should be applauded, not criticized, for zealously representing an unpopular client.
The attack ads in the Kentucky campaign also said Woods was a member of “a radical organization that advocates the legalization of all illegal drugs and the immediate release of all currently jailed drug criminals.” Perhaps you have heard of this so-called radical organization. Its name? NACDL.
NACDL did, in fact, issue a Board of Directors Resolution at its November 2000 meeting urging the federal and state governments to “end the war on drugs” as an absolute failure, which it is. However, contrary to Gillum’s assertion, this is not a “radical” notion. Many respected public figures and organizations share our view, including Ronald Reagan’s Secretary of State George Shultz and conservative commentator William F. Buckley Jr.
Lawyers do not always choose their clients. But the type of client a lawyer represents should not determine the lawyer’s suitability for public office. Negative attack ads that imply criminal defense lawyers have the same ethics and morals as convicted criminals strike low blows that denigrate the constitutional right to counsel.
Even in my own state’s legislative race in Cincinnati, public defender Connie Pillich was criticized by her opponent for “representing criminals.” That was her job — advocating for defendants who did not have enough money for a lawyer. It is imperative that our justice system protects the poor, little-known defendant just as aggressively as it protects the powerful and the celebrated. It is interesting that we rarely see political attack ads that besmirch the character of a lawyer who represents high profile, well-heeled white collar defendants. Pillich ended up losing to incumbent Jim Raussen, who refused to denounce fliers sent out by a political party that stated that Pillich “defends the worst of the worst.” The fliers showed a set of handcuffs latched around a cell phone bearing the words “Just call Connie.”
Just as appalling were the attack ads of Ohio attorney general candidate Betty Montgomery. Montgomery stated that her opponent, state Sen. Marc Dann, was not qualified for the job because he had defended child molesters. The ad showed an actor, who looked like Dann, sitting in a courtroom with his arm around a tattooed prisoner. Luckily, the people of Ohio saw through such desperate tactics and elected Dann as Ohio’s new attorney general.
The Massachusetts gubernatorial race is yet another example in which attack ads criticized a lawyer-candidate for defense work. Deval Patrick, the governor-elect, defeated Lt. Gov. Kerry Healey. Healey said that Patrick was “soft on crime” because he once represented a criminal seeking parole. When the issue surfaced during a debate between the candidates, Patrick said, “I have on occasion represented the unsavory defendant. And you better be glad somebody does because that’s what puts the justice in the justice system. I don’t apologize for that.”
Patrick is right. As criminal defense lawyers, we should not apologize for carrying out our constitutional duties. We are the defenders of liberty. Attack ads are distractions that take the focus away from the real issues.
The American criminal justice system, despite its flaws, is the best in the world. At the very heart of this system is the guarantee of effective assistance of legal counsel for the accused. This constitutional right, and the ethical duty it imposes on criminal defense lawyers to zealously defend unpopular persons, is key to preserving our American freedoms.
Fortunately, modern politicians do not settle their disputes the way politicians did 200 years ago. The year was 1804. Vice President Aaron Burr challenged his political nemesis Alexander Hamilton to a duel after it was reported that Hamilton made disparaging remarks about Burr at a dinner party. The two met in a New Jersey field on July 11. A distance of 10 paces was measured, the word was given, and shots were fired. Hamilton fell to the ground after receiving a fatal wound.
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In 2007, it is our duty, as members of NACDL and the criminal defense bar, to speak out against candidates that resort to attacking an opponent’s character because he or she has represented people accused of a crime. We should also urge our states’ campaign ethics committees to set standards regulating attack ads against attorneys doing their jobs as criminal defense advocates.
Here in Cincinnati, the Cincinnati Bar Association and the Cincinnati Criminal Defense Lawyers Association rallied around Connie Pillich by (1) staging a protest on the courthouse steps, (2) expressing their disapproval of her opponent’s tactics via e-mails and phone calls to his campaign headquarters, and (3) sending letters to the editor of the local paper. As for Dann, even the trial judge in a case where Dann represented a man accused of pandering obscenity involving a minor, spoke out against Montgomery’s ads, calling them “outrageously inappropriate.” I’ve noticed that around the country, state and local bar associations have also spoken out against smear campaigns directed at defense attorney-candidates.
Will our efforts permanently eliminate negative attack ads? Probably not. But at least we can help demonstrate to the voting public that a criminal defense lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. I hope that by speaking out we can get the message across that criminal defense lawyers are more than qualified to hold office because they are key players in assuring that the American criminal justice system remains the best in the world.