How Zealous is Too Zealous? And Are Zealous Defenders of the Guilty Truly Devil’s Advocates? : A Discussion of the Movie The Devil’s Advocate, and Why I Will Never Practice Criminal Law

By Kristen M. Lynch

   Growing up watching Perry Mason episodes, I developed a kind of admiration for attorneys. They were strong, intelligent and always somehow found out the truth. On that show, the guilty were always found out eventually and the innocent were always set free. I think that is what most of society perceives true justice to be: a world filled with defense attorneys like Perry Mason and prosecutors like Warren Burger. In reality, the "justice system" has become something much more complex, filled with technicalities and loopholes.

   In The Devil’s Advocate, Keanu Reeves portrays the character of Kevin Lomax, ironically a Florida prosecutor turned defense attorney that has never lost a case. The film centers on a pivotal decision that Kevin has to make, and the consequences of his choice. In the early part of the movie, Kevin is shown defending a teacher accused of molesting a teenage girl. During the prosecution’s questioning of the alleged victim, it becomes apparent to Kevin that his client is guilty. Kevin calls a recess before his cross-examination and is forced to make a decision. On the one hand he does not want to lose a case, but on the other hand he knows that to win he must push the envelope to free a guilty man. This is not an enviable choice. Kevin decides to ramp up his defense and ultimately frees his client, starting his own path down the proverbial highway to hell. As I watched this movie I was mesmerized. Someone somehow had managed to portray in film my own personal anxieties regarding criminal law.

   I decided that I was going to use this movie as my paper topic for a seminar I am enrolled in on "Law and Popular Culture". There were several ways to approach this movie, such as the portrayal of the devil as an attorney, the obvious parody of Paradise Lost and the references to The Divine Comedy also known as Dante’s Inferno. There is also an existentialist theme of self-determination throughout the movie, somewhat relating to free will and the choices that attorneys are faced with. But as I began researching these various themes for my term paper in progress, I realized that I was not alone in my anxieties. There are innumerable bar journal articles that discuss whether it is possible to be a defense attorney and still be a moral human being. There are articles that discuss whether one can be an attorney at all and still be religious. The main theme of these articles revolves around the degree to which we are required to zealously represent our clients.

   The public has seen in recent years the Menendez Brothers being represented by Leslie Abramson and O.J. Simpson being represented by Johnny Cochran. There is a public perception that most defense attorneys are hired guns that do not care about their client’s guilt or innocence as long as they are being paid well. In real life trials, we as the public are never privy to the thoughts of the defense attorneys regarding their beliefs of the true guilt or innocence of their clients because of attorney client privilege. However, in the movies and on television we can see behind the scenes. In the 1996 movie Primal Fear, Richard Gere played attorney Martin Vail, a Chicago defense attorney that took the case of an alleged murderer because "Everybody will want this one". Ironically, Vail actually thought there was a chance his client was innocent and did not realize until the end of the trial that his client really did commit the murder. When he realized that he had fallen prey to his client’s manipulations, he was filled with some degree of remorse. This portrayal at least represents a view to the public that even hired guns can have a conscience and perhaps suggests the idea that maybe the only way that some defense attorneys can do the job they are paid to do is to, perhaps subconsciously, believe in the innocence of their clients. In a recent episode of The Practice, we were also privy to behind-the-scene debates over freeing an accused nun murderer on a technicality.

   The attorneys did not choose this case as a judge assigned it to them. When they protested, the judge pointed out to them that they had recently represented someone who was caught carrying a severed head with them. The attorneys protested and said "but he was innocent!" The defense attorneys reluctantly took the case and even more reluctantly pointed out that there had been an illegal search conducted that ultimately revealed the body of the dead nun, thus excluding it from evidence. At one point in the show the senior partner confronted the attorney assigned to the case and suggested he had seen her plead more convincingly in previous cases. Even the judge in that episode was shown to feel a moral dilemma over the prospect of setting the alleged murdered free due to an unconstitutional search of his apartment.