Returning to some themes discussed recently by Michael Dorf (Are Lawyers UNIQUELY Amoral?) and Paul Horwitz (Attacking Firms that Represent Guantanamo Detainees), I'm intrigued by the public's continuing dismissive attitude toward defendants who ask for lawyers. TV cop shows, including the best ones ("Homicide: Life on the Street" being my all-time favorite), always present a lawyer as an impediment to achieving justice. "He lawyered up" is a common complaint from investigators. Along similar lines, the New York Times recently ran an article describing how criminal suspects almost compulsively feel the need to talk. The article quoted a criminal attorney saying that she always tells her clients simply to shut up--but they rarely do.
From the public's perspective, this is apparently good news. If guilty people feel the need to confess, after all, why are those amoral lawyers telling them not to do so? Those of us who have been through law school know the answers in the abstract, but I've been pondering whether it is possible to find a compelling example that would make it clear that justice can be advanced when people refuse to talk to the police until a lawyer is present. In order to penetrate the public's consciousness, such an example would ideally either appear in a popular movie or TV show or be something that people could simply relate to intuitively.
I can think of two candidates that have already appeared in popular media. In an episode of "LA Law" (back in the day), a mentally retarded man was being questioned about a sex crime. He said that he was guilty, but it turned out that he was confessing his guilt about something else (something that his mother told him not to do, but which was not a crime). Only when Arnie Becker came in and cleared things up did the police back off. Similarly, in the movie "My Cousin Vinny," one of the suspects confesses, thinking that he is confessing to having taken a can of tuna, not to killing a convenience store clerk. When he realizes what is happening, he says incredulously: "Wait. I killed the clerk! I killed the clerk." The sheriff takes this as an even more direct confession.
The question is whether there is a way to make people understand viscerally that lawyers can prevent injustice by having their clients clam up. Maybe not, but it probably wouldn't hurt if lawyers had at least some real or hypothetical examples to support the principle that the accused is entitled to counsel. (And, of course, it would be nice to have another example of why even guilty people should have lawyers.) The principle is sound. Can we make it sing?