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A right to defend, but not an obligation

Manohar Lal Sharma is the lawyer for one of the accused in the gang rape trial in India.AP

Lawyers representing three of the men charged in the New Delhi gang rape case said last week that they would enter pleas of not guilty on their clients’ behalf. In most criminal prosecutions, that would be unremarkable. But the lawyers who stepped forward to represent the suspects in this case did so in the face of emotional protests by fellow attorneys, many of whom insisted that no one should defend those accused of such a terrible crime.

“There was a good response from the members, and they will not represent,” the president of the local bar association had warned. So when attorneys V. K. Anand and Manohar Lal Sharma offered to serve as defense counsel, reported The New York Times, the result was “a chaotic courtroom scene in which other lawyers tried to shout them down.”

Indians have been infuriated by the Dec. 16 attack, in which six men on a bus attacked a 23-year-old physical therapy student who was heading home from a movie with a male friend. She was repeatedly raped, and so savagely assaulted with an iron rod that her intestines were destroyed. Eventually the woman and her friend, who was also badly beaten, were thrown bleeding and naked into the street. She died of her injuries two weeks later.


Though violent crimes against women frequently go unpunished in India, this one galvanized a national outcry. The defendants may be the most hated men in India at the moment, and the enraged cries for vengeance go beyond lawyers vowing not to represent them. Of course there was never any question of their actually being denied the right to a legal defense. In India as in the United States, even the most despised defendants are entitled to due process of law. And a fair trial would be impossible without what our Bill of Rights calls “the assistance of counsel.”

“I understand the sentiments of the people. But you cannot go by sentiments,” Anand told Reuters after agreeing to take the case. “The accused have a right to justice just as the victim has.” Indeed, it is typically those charged with the most horrific crimes, or those who are the target of seething public fury, whose need for effective legal counsel is most acute. Just as the right to free speech is meaningless if it doesn’t protect the expression of cruel and loathsome ideas, so the right to counsel would be hollow if it didn’t extend to cruel and loathsome clients.


But that doesn’t mean individual lawyers are obliged to defend anyone, or that it’s never fair to judge an attorney by the clients he is willing to represent.

I’m not suggesting that Anand and Sharma now abandon their clients. The Delhi lawyers who heckled them for agreeing to take the gang-rape case had no excuse for breaching courtroom etiquette. And if no lawyers had volunteered, the court would have had to appoint defense counsel, whose duty it would have been to zealously advocate for the clients assigned to them, no matter how odious or obviously guilty.

Yet other than cases assigned to a lawyer because due process requires it, why shouldn’t attorneys expect to be characterized by the caliber of the clients they take? Lawyers who make a career out of representing the interests of, say, abortion clinics or gun manufacturers or labor unions can hardly complain if they come to be seen in the public eye as pro-abortion, pro-gun, or pro-union. Columnists are judged by the opinions they express, venture capitalists by the enterprises they bankroll, directors by the movies they make. An attorney who specializes in representing crooked politicians or jihadist plotters may have not a shred of personal sympathy for his clients’ views. But reasonable people may draw a different conclusion.


“I personally despise criminals and always root for the good guys except when I am representing one of the bad guys,” defense attorney Alan Dershowitz has written. In a fair legal system, even the worst bad guys — serial killers, child abusers, gang-rapists — are entitled to have a lawyer in their corner. But only certain lawyers seek out such clients.

Does that mean they’re bad guys too? Maybe not, but people are apt to wonder.

Jeff Jacoby can be reached at jacoby@globe.com. Follow him on Twitter @jeff_jacoby.