Lawyers often represent clients in criminal cases when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the prosecution. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally unfair? Indeed, what if the system is rigged so as to prevent the lawyer from zealously representing the client, or if it compromises the lawyer’s undivided loyalty to the client? Should lawyers refuse to participate in such systems, or should they – should we – still do the best we can?
Should Lawyers Participate in Rigged Systems? – The Case of the Military Commissions
By Mary Cheh
Mary Cheh is Elyce Zenoff Research Professor of Law at George Washington University Law School. Professor Cheh joined the George Washington Law School faculty in 1979 after being in private practice with Fried Frank Harris Shriver & Kampelman in Washington, D.C., and serving as a law clerk to the chief justice of the New Jersey Supreme Court. Professor Cheh teaches and writes primarily in the areas of constitutional law and criminal procedure. While on sabbatical leave in 1986, she served as a special assistant U.S. attorney in Washington, D.C. In an earlier leave in 1983, she did pro bono work for the Centre for Applied Legal Studies in South Africa. Professor Cheh has served as a consultant to the National Institute of Justice and the President’s Commission on Organized Crime. She is a frequent speaker and media commentator on legal affairs.
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