Hillary Clinton, the Sixth Amendment, and Legal Ethics
By Ken White
For some time, Hillary Clinton's critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim1 in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton's description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.
A judge appointed Clinton to defend Tom Taylor, a man charged with rape of a minor in Arkansas. Many Clinton defenders emphasize that she was appointed by a judge and was not hired by Taylor and did not volunteer to defend him. It is regrettable that Clinton's defenders emphasize this, because it doesn't matter. Clinton's response ought not be "I was appointed and I didn't want the case"; it ought to be "you're goddamned right I defended my client." We're either committed to the Sixth Amendment's right to counsel or we're not. Criminal defendants, whatever they've been accused of doing, are individuals targeted by the vast, implacable machinery of the state. They are entitled to a vigorous defense. The purpose of that defense is to challenge the government and its evidence and act as a bulwark against the defendant being convicted simply because they've been accused. The right is not conditioned on whether or not we think they "actually did it" and not dependent on them being sympathetic or decent or deserving. Rather, the right is rooted in liberty (the recognition that the relationship between the accusing state and accused individual is inherently unbalanced and the individual requires an advocate to have any chance at all of fair treatment), skepticism and humility (the recognition that the state — and the mob — can easily be wrong, and that popular sentiment is a poor measure of whether someone is factually innocent), and a sort of grace. If you think that it's marginally acceptable to defend such people as long as you're not doing so voluntarily, you don't really support the Sixth Amendment right to counsel. You'd have lots of company on the Right and the Left, but you would not be supporting the United States Constitution.
(Incidentally, at the time Clinton was 27 years old and had quite limited criminal defense experience. She had taught criminal law and procedure, which is absolutely not the same as practicing it. She had never tried a criminal case. Yet she was appointed to represent a man on a very grave charge of child rape. That's the reality of indigent defense in America.)
Once appointed to the case, Clinton had a professional and ethical obligation to represent her client vigorously. That obligation made it appropriate — in fact, mandatory — to challenge the government's failure to preserve evidence (a portion of the victim's underwear) so that the defense could test it. That challenge probably induced the government to offer the defendant a plea to the lesser charge of unlawfully fondling a child under 14. It is not a "technicality" to hold the government to its obligation to preserve evidence so that the defense may test it. That is particularly true given the government's long-time fondness for junk science and rampant carelessness and even falsification of tests. Again, if you think it's wrong to challenge the government's failure to preserve evidence, you don't really support the right to a defense.
Clinton critics have also pointed out that she filed an affidavit in support of a motion seeking a psychiatric test of the victim in which she asserted that unnamed persons told her the victim was "emotionally unstable," displayed "stubbornness," and had made false accusations before. We don't know whether those allegations are true (the victim denies them) and we don't know whether Clinton told the truth that someone told her those things. If she didn't tell the truth, or if she put them in an affidavit in a way that concealed that she had no basis to believe that her source had a reason to believe they were true, then that was unethical and contemptible. The content and tone of the attack on the victim's credibility was characteristic of rape defenses in the 1970s (it survives to a much lesser extent today), which you may or may not find grotesque. However, it's a defense attorney's job to probe the credibility of government witnesses, and that includes seeking discovery to which the defense is entitled, including psychiatric examinations. It's not clear to me whether Arkansas law in 1975 required a defendant to support a factual basis for requiring a psychiatric exam — if it was, then in my opinion Clinton's claims premised on vague anonymous hearsay did not supply a factual basis. I suspect that most jurisdictions would now require a substantially more specific and attributed basis to subject an accuser to a psychiatric test, to the extent they allow the defense to demand such a test at all. You can make a perfectly colorable argument that a defendant ought not be able to force a psychiatric exam of an accuser. However, you can't make a plausible argument that a defense lawyer shouldn't ethically seek such an exam when the law permits it. Unless she lied — and I have no way of knowing whether she did — this step was part of Clinton's vigorous defense.
Tom Taylor pleaded guilty to fondling a child under 14. That is evidence that he did it — and may have done more — but is not, in reality, absolute proof. Defendants confess falsely, and defendants plead guilty to things they did not do to avoid the risk of a long sentence. The fact that a defendant was found guilty — or admitted guilt — does not make a vigorous criminal defense retroactively blameworthy. You're with me on that, or you're not — you agree that someone accused by the state should be defended, or you don't.
That leaves us with the recorded interview with Clinton from the 1980s. In my opinion, that interview displayed an ethical lapse, one regrettably common among lawyers presented with an opportunity to promote themselves to interviewers. Clinton said this:
Of course he claimed he didn't [commit the offense]. All this stuff. He took a lie detector test. I had him take a polygraph, which he passed, which forever destroyed my faith in polygraphs. [laughs]
That's completely inappropriate. Clinton just suggested that she believed her client did what he was accused of, and a fair inference is that her belief may be premised in part on her confidential communications with him. That's a violation of her ethical obligations of loyalty and confidentiality, and it's not goddamn funny. It's completely inappropriate. It's easing her ethical duty to the former client in order to get a laugh line in an interview. The fact that it's common for attorneys to put their egos ahead of their obligations to the client doesn't make it right.
People also attack Clinton for laughing about the case during the interview. They find the tone of her description of her defense to be callous and disrespectful to the victim. This is a matter of opinion. It's true that defense lawyers, in relating war stories, may do so in a tone that seems indifferent to the suffering of victims. I think that's human nature. I've heard it from prosecutors and ER doctors and and surgeons and funeral directors and soldiers and other people tasked with handling grim matters. I believe it's more a defense mechanism than a sign of true callousness to humanity. You'd go quite mad if you constantly talked about such jobs with the tone they deserve. I can understand, though, that if a lawyer discusses an ugly case with an interviewer (as opposed to telling war stories with colleagues), reasonable people may find a light tone unsettling. I find Clinton's tone to be callous in the interview, but I recognize that's probably strongly colored by the fact I really don't like her.
I'm a criminal defense lawyer. I've represented people by appointment and voluntarily, and I've represented people accused of all sorts of things. I've made vigorous use of my client's constitutional and procedural rights to attack the government's case, even in cases were most observers believed it was clear that my clients "did it." That's my job. You're free not to like it, and free to attack me for it. But I'm going to call you totalitarian and un-American if you do.
Copyright 2016 by the named Popehat author.
October 10, 2016 at 11:52AM
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