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The Criminal Defense Attorney: Roadblock or Bridge to Restorative Justice

Published online by Cambridge University Press:  25 September 2015

Robert F. Cochran Jr.
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In the mid-1970s, I attended one of the early conferences on Alternative Dispute Resolution (ADR). It was held in Stanton, Virginia in the heart of Mennonite country. At that point, very few people had heard of ADR, but almost all acknowledged that the civil litigation system was broken. The bar establishment was willing to look almost anywhere for help. There were American Bar Association representatives at the conference, and their attitude was one of curiosity that disputes might be resolved outside the traditional litigation and negotiation processes. At the conference, some of the leading speakers were members of Mennonite dispute resolution groups. They seemed to many lawyers as if they had stepped off of another planet, but they told of a history of dealing with disputes through alternate means. They served as teachers to the ABA and the rest of us. Since then, of course, everything has changed. ADR has swept the country. It would probably be malpractice for a lawyer to not consider alternative means for resolving civil disputes.

Type
Articles
Information
Journal of Law and Religion , Volume 14 , Issue 1 , 1999 , pp. 211 - 228
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1999

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References

1. See Cochran, Robert F. Jr, Legal Representation and the Next Steps toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47 Wash & Lee L Rev 819 (1990)Google Scholar.

2. Ness, Daniel Van & Strong, Karen Heetderks, Restoring Justice 26 (Anderson, 1997)Google Scholar.

3. Zehr, Howard, Changing Lenses: A New Focus for Crime and Justice (Herald Press, 1990)Google Scholar. See Umbreit, Mark, Victim Meets Offender: The impact of Restorative Justice and Mediation 2 (Crim Justice Press, 1994)Google Scholar; Ness, Daniel W. Van, New Wine and Old Wineskins: Four Challenges of Restorative Justice, 4 Crim L F 251 (1993)CrossRefGoogle Scholar; Baker, Mark William, Repairing the Breach and Reconciling the Discordant: Mediation in the Criminal Justice System, 72 NC L Rev 1479 (1994)Google Scholar; and Pleasants, Julian R., Religion that Restores Victims, 9 New Theo Rev 41 (1996)Google Scholar.

4. Zehr, , Changing Lenses at 181 (cited in note 3)Google Scholar.

5. Ness, Van & Strong, , Justice at 42 (cited in note 2) (emphasis in original)Google Scholar.

6. Cochran, , Crime, Confession and the Counselor-at-Law at 327–97 (cited in note †)Google Scholar.

7. Ness, Van & Strong, , Justice at 42 (cited in note 2) (emphasis in original)Google Scholar.

8. Restorative justice can be difficult in a case in which the offender committed such a horrible crime. It certainly would be impossible for the offender to provide full restitution to the surviving husband and children. Yet some of the strongest advocates of restorative justice are those who have suffered the worst crimes. See, for example, Wetzstein, Cheryl, Restorative Justice Lets Inmates Make Peace with Victims: Bible-Based Program Wins Converts, Wash Times, 03 9, 1999 (Arna Washington, whose daughter was murdered, and Cheryl Ward-Kaiser, whose husband was murdered and daughter raped, speak forcefully at a conference in favor of restorative justice)Google Scholar. They often have a strong desire to see something good come of the loss of a loved one. For some, part of that good may be the reform of the offender. The survivors also often want to know why and how the offender committed the crime and to let the offender know the pain he has caused.

9. Hunt, Stephen, Judge Rules Defense Was Adequate for Killer: Judge Affirms Job of Public Defender Salt Lake Trib Bl, 06 10, 1995Google Scholar.

10. State v Holland, 876 P2d 357, 362 (Utah, 1994) (quoting State v Taylor).

11. Id. It does not appear that Levine in fact promoted confession to Taylor as he stated in his closing argument. On the appeal of the Taylor case, another attorney was appointed to represent Taylor. Taylor's new counsel made a motion to set aside Taylor's conviction on the basis that Levine gave Taylor ineffective assistance concerning his guilty plea. At a hearing on the matter, Levine claimed in his defense that his statement to the jury that he counseled Taylor to confess was a lie. That was a closing statement,” Levine testified. “I was trying to sway a jury … to prevent them from imposing the death penalty…” Hunt, Stephen, Judge Rules Defense was Adequate for Killer: Judge Affirms Job of Public Defender, Salt Lake Trib Bl, 06 10, 1995Google Scholar. It was a part of Levine's attempt to convince the jury that Taylor was “remorseful, contrite and repentant.” Id. The trial judge on remand held that the Levine who lied to the jury had provided adequate representation. Id.

12. Holland, 876 P2d at 362 (cited in note 10) (emphasis added).

13. Id at 363 (emphasis added).

14. See, for example, Cronin, Margaret, Winning: Successful Strategies from Ten Litigators Who Stand Apart from the Crowd, 14 Nat'l L J 22 (1992)Google Scholar. Wishman, Seymour, Confessions of a Criminal Lawyer at 3–6 (Penguin Books, 1981)Google Scholar in Cochran, Robert F. Jr & Collett, Teresa S., Cases and Materials on the Rules of the Legal Profession 166–67 (West, 1996)Google Scholar.

15. Simon, William H., Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 Md L Rev 213, 220 (1991)Google Scholar.

16. Rosenthal, Douglas, Lawyer and Client: Who's in Charge? 17–19 (Russell Sage Fndn, 1974)Google Scholar.

17. Shaffer, Thomas L. & Cochran, Robert F. Jr, Lawyers, Clients, and Moral Responsibility 5–14 (West Pub Co, 1994)Google Scholar.

18. Dostoyevsky, Fyodor, The Brothers Karamazov 352–73 (Mod Lib, 1950)Google Scholar.

19. Id at 365.

20. Id at 366-67.

21. Id at 366.

22. Id at 367.

23. Id at 373.

24. Id at 360.

25. A survey of a wide variety of Los Angeles clergy revealed that all would encourage those who had committed a crime to confess to the victim and to the government authorities. Telephone interviews with Thomas Cooper, Pastor, Mt. Olive Lutheran Church; Robert Nedd, Pastor, First African Methodist Episcopal Church; Ali Mirahmadi, Chief Servant, Islamic Center of Beverly Hills; Father John Bakas, Dean, Saint Sophia Cathedral Greek Orthodox Church. Notes of telephone conversations on file with author.

It is within the Christian tradition that we find the greatest emphasis on confession. James wrote to the early Christians: “[C]onfess your sins to each other and pray for each other so that you will be healed.” James 5:16Google Scholar. For some Christians the focus is on private confession to a priest, as in the Catholic Church, but with other Christians, the focus is on confession to those who have been wronged or to the entire congregation. In Pastor Robert Nedd's First African Methodist Episcopal Church, they have communion every Sunday. ”[W]e ask [the people] to go to their neighbor and apologize before taking part in communion. We teach that you have to be right with your fellow man before you can be right with God.” (Interview with Robert Nedd cited earlier.) Kefa Sempangi describes confession in the indigenous East African Revival Fellowship:

I walked into my first revival fellowship meeting shortly after my conversion in 1961. It was Friday afternoon and the hall was packed with people singing and praising God. Most of the songs were about the blood of the Lamb that was slain (for example, Jesus' death as a payment for our sin). As different brethren stood up and openly confessed their sin, I noticed that no one was paying any attention to the sins confessed. Before a brother or sister could finish the confession, the rest of the brethren burst out into songs of praise.

Even though my legs were trembling, I finally stood up as well. I confessed my past unfaithfulness to God and the damaged relationships in my life. Before I had finished people started singing praises for the blood of the Lamb.

“Is this the fellowship?” I asked myself. “These brothers hardly noticed my sin.” Later one of the founding fathers, Mondo, explained to me, “What we hear is not your sin, but God's work in your life. We hear you giving witness in your life. We hear you giving witness to God's power to break the chains of sin. Because we know that, left to ourselves, we can never go to a brother and confess to him, ‘I have done foolishly, forgive me.’ This only happens when grace takes over and pushes our pride into a tight corner.”

Sempangi, F. Kefa, A Distant Grief 37–38 (G/L Pub, 1979)Google Scholar.

Confession is encouraged within Judaism as well. The midrash praises Judah for publicly confessing that he withheld his youngest son from Tamar and slept with her. Zomberg, Avivah Gottlieb, Genesis: The Beginning of Desire 327-28 (Jewish Pub Soc'y, 1995)Google Scholar. On Yom Kippur, the Day of Atonement, Jews hear repeatedly: For transgressions against God, the Day of Atonement atones, but for transgressions of one human being against another, the Day of Atonement does not atone until they have made peace with one another. Pleasants, , Religion that Restores Victims at 54 n 128Google Scholar, quoting Central Conference of American Rabbis (1978) (cited in note †). “[T]here are elements of a confessional within Islam, especially within Sufism” though without the Christian notion that confession leads to forgiveness. Hepworth, Mike & Turner, Bryan S., Confession: Studies in Deviance and Religion 9 (Routledge & Kegan Paul, 1982)Google Scholar.

26. Dostoyevsky, , Karamazov at 368 (cited in note 18)Google Scholar.

27. The rules that govern most of the lawyers in the United States encourage lawyers to raise and discuss moral issues with clients during representation. The Model Code of Professional Responsibility EC 7-8 states: “In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible.” Rule 2.1 states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral factors, that may be relevant to the client's situation.”

28. Shaffer, & Cochran, , Lawyers at 5–14 (cited in note 17)Google Scholar.

29. Bellah, Robert N., Habits of the Heart: Individualism and Commitment in American Life 115 (U Calif Press, 1985)Google Scholar.

30. Under the rules that govern the legal profession, the client is entitled to control the objectives of the representation. Model Rules of Professional Conduct Rule 1.2(a) (ABA, 1983). Dostoyevsky's stories suggest that an offender should confess, even in the face of one of the most unjust systems the world has seen, that of czarist Russia. Dostoyevsky was familiar with the abuses of that system. As a young man, he was sentenced to die for political activity, put through a mock execution, imprisoned in Siberia for years, and subjected to solitary confinement. Yet, in the face of the czarist system, Dostoyevsky's characters do not find peace until they openly acknowledge their guilt. Dostoyevsky describes the horrors of life in exile in Notes from the House of the Dead (1860). For a brief description of Dostoyevsky's experience in the forced labor camp, see Breger, Louis, Dostoyevsky: The Author as Psychoanalyst 142–59 (NY Press, 1989)Google Scholar.

31. Shaffer, & Cochran, , Lawyers 113–34 (cited in note 17)Google Scholar; Cochran, , Crime, Confession and the Counselor-at-Law at 391–96 (cited in note †)Google Scholar.

32. Lafave, Wayne R. & Israel, Jerold H., Criminal Procedure 16 (West, 1985)Google Scholar.

33. Simon, , Lawyer Advice and Client Autonomy at 220 (cited in note 15)Google Scholar.

34. In some jurisdictions, if the defendant refuses to plea, the judge will enter a plea of not guilty for the defendant. See, for example, 43C Rules of Criminal Procedure Rule 12 in Mass Gen Laws Ann (West Pub Co, 1995). This might provide an option for the defendant who does not want to deny guilt but wants to require the state to prove its case. Nevertheless, the refusal to plea might be viewed by the court as either a refusal to cooperate with the legal system or an implicit acknowledgment of guilt. The judge should not even call on the defendant to plea.