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Even a Witch Needs a Lawyer

Why Lawyers are Important in the Time of Trump

On January 20, 1692, in the Town of Salem, Massachusetts, two young girls by the name of Abigail Williams and Elizabeth Parris began demonstrating outrageous behavior. They threw things, exhibited “fits” and seizures, uttered peculiar sounds and shouted and engaged in blasphemous screaming. They then accused at least eight other local women of being witches who communed with Satan to produce their troubled state. Other young girls came forward with more accusations. About two hundred people were ultimately arrested and imprisoned on witchcraft charges. Some of the accused were well-off, now thought to be victims of fellow townspeople who gained from their arrests.

All convicted witches were provided with trials brought by a special prosecutor before an allegedly neutral panel of “justices.” Remarkably there was a complete absence of legal counsel - each alleged witch was forced to face their accusers without an attorney.

As a result, there was no professional advocate to counter the prosecutor - a gung-ho witch hunter named William Staughton. The case was tried before a jury consumed with unimaginable hysteria which cared nothing for the presumption of innocence and burden of proof. Over the course of ten months in 1692, nineteen men and women were convicted of witchcraft and hanged on Bellows Hill, a barren slope near Salem village. Two dogs were executed as accomplices of witches. An 80 year old man was pressed to death under heavy stones for refusing to submit to trial. All cases were heard by so-called “justices” who were convinced the accusers were honest-to-god-witches.

Witchcraft hysteria has disappeared but witch hunting has continued in America. For example, in the 1950’s a senator named Joe McCarthy ran a witch hunt to expose alleged communists in government and the movie industry. Again in the 1980’s, mass hysteria led to the MacMartin preschool trial alleging teacher abuse of dozens of children. After six years of litigation the case concluded with no convictions and the dropping of all charges.

Salem was America’s first significant judicial experience and for any right-thinking person it was a travesty, violating any notion of justice.

Flash forward to the 21st century. We are rightfully proud of our legal system. Salem, however, is not far removed. Every seasoned criminal defense attorney will tell you that even under the best of circumstance the process is stacked against the accused. Every defense lawyer walks into a courtroom on the side of a frightened, beaten-down defendant; confronted with a prosecutor seated closest to the jury possessed with enormous power who has the single goal of putting your client in prison. On the bench overlooking the entire scene from an elevated bench is a judge who most likely was a former prosecutor seated before the flags of Government, in most cases convinced that the prosecutor plays a righteous role which he or she is required to facilitate

Even for a wealthy person, known and respected by the community, the process is stacked against the accused no matter what his status. For every criminal defendant, the presumption of innocence is an illusion: every jury views the accused with suspicion and distrust, convinced of guilt. Even the good people in this process - judges, prosecutor, clerks, and marshalls- do not see people, only case numbers. Similarly, the juries who hear these cases do not see people, only criminals who would not be there if not guilty. Other values, such as reforming defendants and educational rehabilitation have been lost in lieu of efficient processing.

This is what the criminal defense lawyer faces everyday. There are plenty of people with all the power of the State to convict and punish. And Salem is always in the rearview window with its delirious mob staring back. Unlike Salem, what gives any present day defendant a chance is the commitment of the criminal defense lawyer standing up for the client no matter what the cost. There are committed and often courageous defense lawyers who refuse resignation and stand up for the dignity of the citizen accused and maintain the energy to investigate and re-investigate every case; re-formulate the prosecution’s theory of the case; and make every effort to humanize their client to the jury.

As I write this preface to our winter newsletter, I am reminded that as a defense lawyer the specter of Salem haunts every courtroom where I face a skeptical jury or hostile judge. Ironically, our system has the same due process trappings now as then- arrest by warrant; a public prosecutor; a trial by jury. The one enormous difference is the right to counsel – without the assistance of dedicated defense counsel the citizen accused has as much chance of freedom as a defendant staring down a Salem jury. The defense lawyer has an exalted role: the last best chance for every criminal defendant against the witch hunting mob. It is the solemn duty of defense lawyers to resist the de facto presumption of guilt and insist that dignity and respect be accorded the defendant. Without them we are all back to Salem. This I believe beyond a reasonable doubt.