October 14, 2003

In Martin Scorsese's remake of the film Cape Fear, Max Cady, a psychopath who spent years in prison for brutally raping a teenaged girl, discovers that Sam Bowden, his lawyer, withheld crucial evidence that could have acquitted Cady, because Bowden was so disgusted by his client's crime.

In the film's climactic scene, Cady holds a gun to Bowden's head while demanding that he recite what the legal canon of ethics requires an attorney do for his client. "An attorney shall represent his client," Bowden begins to mumble. A furious Cady cuts him off: "An attorney shall zealously represent his client, counselor! Zealously! And I pronounce you guilty: Guilty of selling me out!"

Bowden is in fact guilty as charged: He sold out his client in return for payment, in the form of the satisfaction of seeing a moral monster get some measure of justice, and of avoiding the pangs of conscience he would have suffered if he had helped a man guilty of a terrible crime go free.

I thought of this scene during the first day of Kobe Bryant's preliminary hearing, especially when his attorney Pamela Mackey "accidentally" used Bryant's accuser's name a half-dozen times during the proceeding.

Obviously this wasn't a mistake on her part: It was a calculated gamble, skirting the edges of contempt of court, which Bryant's defense team believed would be beneficial to their client.

Another calculated gamble involved raising aspects of the accuser's sexual history during the preliminary hearing. This was arguably an intentional violation of Colorado's rape shield statutes. In any case, it was a dubious enough tactic to cause the judge to call a halt to the proceedings.

All these incidents emphasize that defending people accused of serious crimes is often a morally ambiguous business. Indeed, defending someone like Bryant is a morally disgusting task, which inevitably contaminates those who choose to undertake it.

It's morally disgusting for a number of reasons: First, there's a very real possibility that Bryant brutally raped a teenaged girl, which means that defending him successfully creates a very real possibility that his attorneys are helping him get away with a horrific crime. Second, on the best possible interpretation of Bryant's behavior, they are still defending a certifiable creep: the kind of man who goes out of his way to pursue a 10-minute "affair" with a teenaged girl a few months after his wife has given birth to his child.

More fundamentally, something like the Bryant case contaminates everyone who comes near it. The media, in the name of the public's "right to know," (but more realistically in the name of the media's right to maximize profits), ends up publishing almost every salacious detail of the whole sordid business.

Instant experts jostle for position on cable television news programs that will dedicate 100 times more resources to this sort of sensationalist pseudo-event than to far more important news stories. NBA and Nike executives spend countless hours calculating how to engage in damage control in the wake of the devaluation of one of their most valuable "assets." And so on.

But it is the lawyers in situations such as this who are, to use William Ian Miller's term, the most obvious moral menials. "Moral menials," Miller says, "deal with moral dirt, or they need to get morally dirty to do what we need them to do. And despite the fact that we need to attract people to this kind of labor, we still hold them accountable for being so attracted." This, at bottom, is the source of every lawyer joke - and of the endless moral ambiguities that contaminate the practice of law.

Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.

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