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Jewish World Review August 27, 2001 / 8 Elul, 5761

David Limbaugh

David Limbaugh
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Consumer Reports

The O.J. Syndrome: Shaming a profession -- AS a lawyer I have long been troubled by the widespread belief that lawyers are often enemies rather than facilitators of justice. For the most part. I think it's a bad rap.

But after being treated for several years to the endless parade of deception from the lying lips of certain criminal defense lawyers moonlighting as TV pundits, I can better understand why many hold the profession in contempt.

First, let's look at some of the other reasons for the public's generally negative view of lawyers and consider whether they are warranted. Most people -- including ardent lawyer bashers -- endorse the various common law and constitutional protections afforded criminal defendants. It's even politically correct to champion the Fifth Amendment right against self-incrimination, the Sixth Amendment rights to a jury trial, to confront witnesses and the presumption of innocence.

Despite believing in these rights in the abstract, many are troubled by some of their practical applications. It genuinely bothers people for a lawyer to defend someone he strongly suspects is guilty.

But it is essential that some attorneys represent defendants -- even those they know are guilty -- so long as they don't defraud the court or permit their client to do so. Indeed, such representation is essential to the preservation of our system and our liberties.

The American judicial system is an adversary one where the lawyers on each side are obligated to represent their clients' position to the best of their ability. The truth is expected to emerge as a result of a spirited contest between competing opponents in the litigation process.

If all lawyers refused to represent criminal defendants they believed were guilty, they would be substituting their judgment for that of the judge and jury, and the system would break down. Ironically, the very people who are so distrusted (the lawyers) would be placing themselves in charge of determining the criminal defendants' fate. This is hardly what our forefathers had in mind.

So I passionately defend the process and the criminal defense attorneys' role in it. But I take strong issue with the reprehensible practice of criminal defense lawyers-turned-commentators of saying darn near anything (except the truth) in defense of defendants everywhere, whether or not they happen to represent them.

So many lies are told; so much disingenuousness is disseminated that the public surely must have difficulty distinguishing fact from fiction. These lawyers are doing a disservice to their profession and to society by creating the impression that the legal system is one gigantic game devoid of principles and dignity. That's inexcusable.

This practice reached epidemic proportions with the O.J. Simpson mouthpieces, then reached a level of sophistication and refinement with the Clinton shills, and is now being recycled by the Condit defenders. Their recurring offense is that they confuse their courtroom advocacy with their advocacy as television commentators. This is an important distinction, but one that is forever ignored by the TV criminal defense bar.

In addition to their duplicity on behalf of all the miscreants of the world -- the more obviously guilty, the better -- they also misrepresent the purposes of certain constitutional protections.

For example, how many times have you heard these lawyers chastising other pundits for offering their opinion as to a person's probable guilt? "What happened to the presumption of innocence?" they ask.

Well, I'll tell you what happened to it. It doesn't apply against TV commentators who are not the arbiters of a person's guilt. It applies to prosecuting authorities, state or federal. But, commentators and other individuals have a First Amendment right to express their opinions, subject to their obligation not to defame, and, in delivering their opinions, they are not required to accord any presumptions to anyone.

Another example is when defense attorneys excoriate pundits for arguing that Gary Condit's uncooperativeness is suggestive of his guilt, or at least of having something to hide. "How dare you deny the poor Congressman his Fifth Amendment Rights?" ask the sanctimonious attorneys.

Without question, Condit cannot be compelled to incriminate himself. And juries are routinely instructed not to consider a defendant's invocation of his Fifth Amendment rights in weighing his guilt or innocence. But nothing in the Fifth Amendment precludes commentators or other individuals from considering such things in forming their opinions. Nor does the Constitution require them to abandon their common sense.

Society would be much better off if certain overzealous criminal defense attorneys would spend less time blindly defending the indefensible and more time speaking the truth.

David Limbaugh, a columnist and attorney a practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.