When the opportunity arises, the trial judge may want to educate the public on the important role of defense counsel in a criminal case and inform them that the Sixth Amendment affords the right to counsel to all persons, regardless of the type of crime or the evidence against them. The judge can remind those in the courtroom that defense lawyers are doing their job to uphold the Constitution and fulfill their oath as officers of the court.
A trial judge may even instruct the victims and family members, before they begin to testify, about the purpose of a victim impact statement and inform them that they may present evidence for the purpose of conveying how the crime has impacted the victim, their family, and society, and that, while they are free to speak about the defendant, any disparaging remarks about the defense lawyer are out-of-bounds and will not be tolerated. A criminal defendant’s right to a counsel is one of the bedrocks of our Constitution, and the court plays an important role in protecting that right.
We recognize that court proceedings can be exhausting both physically and emotionally on the victim and the family. However, these hardships are not attributable to defense counsel.
We are also mindful of the difficult role of defense attorneys who must defend their clients vigorously in adversary proceedings. These clients may be facing very serious penalties and are often despised by victims, their families and the general public.
We note that failure to contain disparaging remarks about defense counsel could implicate their safety.4 During oral argument, defense counsel emphasized that victim impact statements could potentially inflame the spectating public.
While the defendant is frequently escorted safely out of the courtroom under the protection of law enforcement, the defense attorney has no such security, and must leave the courtroom, using the same hallways as the victims and their families. If disparaging or threatening remarks about counsel are permitted during emotionally charged sentencing hearings, it could enrage those in attendance and put defense attorneys in harm’s way. The court has an interest in keeping attorney’s safe in the course of performing their duty as advocates. Thus, although we find the letter in this case was admissible, we do not condone the negative comment about defense counsel, and we encourage trial courts to play an active role in eliminating such remarks.
The safety of defense counsel cannot be understated or ignored. For example, while this appeal was pending, a trial judge in Michigan was sentencing a physician who sexually abused at least 160 female athletes, including many Olympic gymnasts. Many of the victims in that case gave highly emotional victim impact evidence that went viral. One of the victims rebuked the defense attorney in her statement, implying the attorney was only representing the defendant for notoriety and money. Following that remark, that defense attorney and one of her colleagues in the case have received numerous death threats to themselves and their children. Tresea Baldas, Larry Nassar’s lawyer gets death threats in MSU sex abuse case: ‘It’s been insane,’ Detroit Free Press (Jan. 31, 2017).
As a follow-up to this incident, a criminal defense attorney in Michigan wrote an opinion column, signed by over 300 criminal defense attorneys, in support of the physician’s lawyer. In this column, the lawyer observed,
“The role of defense attorneys is crucial to our system of justice. Our nation’s founders believed our job was of such importance that it was enshrined in our Constitution. It is defense attorneys who hold the government and our courts accountable. Without defense attorneys, there is no rule of law.”
Mary Chartier, Opinion: Larry Nassar’s attorney was criticized – but here’s why I support her, Detroit Free Press (Feb. 1, 2018).