As attorneys involved in representing people accused of committing crimes, naturally we are both acutely aware of several provisions of the U.S. Constitution.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to have the assistance of counsel for his defense.”
And finally, Section 1 of the 14th Amendment guarantees those facing prosecution both “due process of law” and “the equal protection of the laws.”
We are currently involved in the defense of John Eastman, who is being investigated by both state and federal prosecutors for suspected and alleged crimes growing out of the 2020 presidential election.
Although quite experienced — Burnham joined the bar in 2006, Silverglate in 1967 — we have never represented a client who has been the victim of a worse rush to judgment. He is deemed all but guilty by certain powerful sectors, one of them being the U.S. House Select Committee tasked with investigating the Jan. 6 Capitol attack.
Our client likewise is being investigated by both state and federal authorities for alleged irregularities in determining the proper electoral count.
Eastman is entitled to the presumption of innocence, unless and until the judicial system has determined otherwise.
Criminal defense and civil liberties attorneys past and present are well acquainted with such pilings-on. The infamous late Sen. Joseph McCarthy held hearings looking to find Communists, whom he deemed dangerous political enemies of the republic, in every nook and cranny of the public and private sectors. Silverglate was young during those hearings, but he cannot get them out of his mind.
Criminal defense lawyers have long looked for an example to the late Clarence Darrow, whose career was summarized by Arthur Weinberg in a collection of Darrow’s most famous arguments, jury closings and so forth. With an introduction by the highly regarded Supreme Court Justice William O. Douglas, the volume is appropriately named “Attorney for the Damned.”
Darrow famously defended himself when accused of representing those accused of heinous crimes. He defended himself professionally by pointing out not only that every accused is entitled to a defense, but that a number of his clients turned out to be innocent.
He also prided himself in taking on cases for clients with whom he personally disagreed on important issues.
Darrow importantly defended the right of citizens to be different, to break various political and cultural molds. In his closing argument during a 1920 Chicago trial of 20 accused Communists, Darrow said: “When a new truth comes upon the Earth, or a great idea necessary for mankind is born, where does it come from? Not from the police force or the prosecuting attorneys or the judges or the lawyers or the doctors; not there. It comes from the despised …; it comes from men who have dared to be rebels ….”
Some may be well aware of the infamous criminal prosecution of Nicola Sacco and Bartolomeo Vanzetti, Italian immigrants accused and convicted of a crime after a grossly unfair trial heavily influenced by anti-Italian and anti-radical bias. Despite evidence pointing to their innocence, Sacco and Vanzetti were executed in 1927.
The bottom line is that despite all of the advantages of living in a free nation bound by the rule of law, our justice system has been known to veer off the tracks in highly controversial and politicized cases.
Zealous advocacy on behalf of a client, particularly in highly controversial situations, is not a crime. In such cases, the legal system tests such issues as the ambiguity of criminal statutes, the definition of what constitutes a crime, whether elections have been accurate and honest, and so forth. Were all of these activities deemed criminal, public officials and candidates for public office would overpopulate our prisons.
One would hope that after all this time and all of these incidents, our society would recognize that the presumption of innocence is not a mere slogan, and that the legal institutions for determining guilt or innocence were enacted for a good reason.
Charles Burnham is a founding partner of Burnham & Gorokov in Washington, D.C. He specializes in federal criminal cases, government investigations, and grand jury matters. Harvey A. Silverglate is a criminal defense and civil liberties lawyer and writer. He practices in Cambridge, Massachusetts.