UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruining their meanings, and I apologize about that.
This post has been modified in response to Rick’s comment below.

Yesterday brought another interesting post from Scott Greenfield’s Simple Justice. He had been made aware of a blog by a new law school graduate with hopes of entering the world of criminal defense. The author monologued about the moral dilemma a defense attorney has when representing a “guilty-as-charged” client. Her ultimate answer to it was that a defense attorney has a duty to tell her client’s story in order to achieve a fair outcome.

Scott, lodged in a lesson about the dangers of blogging (Loose blog posts Sink egos, or something of the sort), explained that there is no moral dilemma. A defense attorney is there to beat the prosecution and win freedom for his client. It is, after all, an adversarial system. (Disclaimer: This is my summary. Read his comment.)

That was yesterday.

Today I found that Rick Horowitz wrote in response to these posts. One of Rick’s points is that a fundamental principle of American Justice is that a defendant is presumed innocent until the prosecution has proved beyond a reasonable doubt that the defendant is guilty. There should never be a moral dilemma, since a defense attorney is merely maintaining the existing, fundamental, presumption until if — despite his best efforts — the prosecution wins and proves beyond a reasonable doubt that the presumption was incorrect. The presumption was never improper, but it may turn out to be inaccurate. (Disclaimer: This is my summary. Read his post.)

Both Scott and Rick point out that telling a client’s story is not integral to the job of a defense attorney. Rick even mentions that the presumption of innocence exists without the defendant saying anything at all and in some cases that may be the best route to defending a client. In other cases, telling the client’s story may be part of the defense. My real concern was with myself; when I read the instigating blog post, I felt myself nodding in agreement. “Why yes,” my unconscious murmured, “what else is a defense attorney to do?” I had asked Scott to give his explanation, both on twitter and in his comments, because I wasn’t clear exactly where the original author had gone wrong.

I think I finally figured it out. While in Law School (which I am), taking CrimLaw (which I did), the students read a multitude of cases and opinions. I think it’s safe to say that almost every last one is an Appellate Opinion. What is the big difference between Appellate and Trial Court opinions? The facts.
We law students are exposed to criminal law with the facts laid out before us. We have a bird’s eye view on the crime, what happened and whodunit. This almost always plays out when the class discusses the death penalty, and the point made when discussing death penalties is that, when there’s nothing left to do in defense of the client, you tell his story in the hopes of dissuading the jury from handing down the death penalty.

I know, I’m highlighting yet another disconnect between law school and the practice of law. Nothing novel or exciting. Just another reason for me to sigh heavily when I think of my student debt.