Article ID: JAV363 | By: David Hagopian
This article first appeared in the Viewpoint column of the Christian Research Journal, volume 36, number 03 (2013). For further information or to subscribe to the Christian Research Journal go to: http://www.equip.org
I once debated a minister about Christian civil disobedience. He quoted verses from the Gospels about the scribes opposing Christ. When he did, he would pause dramatically at the word scribes, look at me, and intentionally translate scribes as lawyers: “The (lawyers)…began to press [Christ] hard and to provoke him” (Luke 11:53 ESV). The obvious conclusion he wanted our audience to draw was that I, too, was one of those pesky “lawyers” opposed to Christ.
Most don’t assume that Christian lawyers always oppose Christ. But there are some who think that Christian attorneys necessarily compromise their faith in their practice. Perhaps no issue brings this kind of thinking to the fore more than the question of whether Christian attorneys should represent the guilty. Complicating this question, in part, is American pop culture’s portrayal of lawyers who represent guilty clients as villains, and lawyers who betray guilty clients as heroes (e.g., The Devil’s Advocate, And Justice for All).
Innocent until Proven Guilty. Pop culture aside, the usual phrasing (whether a Christian attorney may represent the “guilty”) does not appear to be the right question to ask. Guilt is a technical legal term that is proper to use only after a verdict is rendered and all appellate recourse has been exhausted. Only then does the term guilty apply in any meaningful legal sense. Thus, the usual phrasing begs the legal question at issue. Not all who are accused are guilty.
We face yet another problem because the term guilty, even after a verdict, may, but does not necessarily, reflect what actually may be true. Verdicts may be true or false, right or wrong. Infamous criminal cases abound where someone who is commonly believed to have done the deed walked. Casey Anthony comes to mind. But there are also cases, far less publicized, where the truly innocent get wrongly convicted. Randolph Arledge, for example, was convicted of murder in 1984 and spent nearly twenty years in jail before his conviction was overturned this year because new DNA evidence exonerated him and pointed definitively to someone else who committed other crimes with a similar MO. Prosecutors make mistakes, and sometimes, prosecutors, as fallen human beings and agents of the government (some of whom have independent political ambitions), engage in misconduct (withholding evidence), though strangely no one ever really asks if a Christian can be a prosecutor without compromising her faith.
Human justice, by definition, is an imperfect tool. Indeed, all who participate in the criminal legal system—the accused, witnesses, counsel, judge, and jurors—are imperfect. Because we, unlike God, are finite, we have an “information problem,” a gulf between what our imperfect human system of justice might say happened and what actually happened. Sometimes the system gets it right, but sometimes the system gets it very wrong.
So the real question is whether a Christian is ethically permitted to represent a client she knows committed the crime. We are not talking about condoning legally unethical conduct such as committing perjury or destroying evidence, only the ethical propriety of forcing the state to prove its case. We also are not talking about just any crime. No one gets too worked up over a traffic ticket, only over “big ticket” offenses such as murder.
As with all ethical issues, we must turn to God’s Word as our standard for what we believe and do. God actually has a lot to teach us on this score. For starters, God ordained human governments, including legal systems (Rom. 13:1–7). While this fact does not mean that every human government/law/legal system is just, there is nothing unjust per se about our constitutional form of government. This includes its adversarial system of justice, where the assumption that a criminal defendant is innocent until proven guilty is a part of fundamental due process. Such a system, after all, nobly strives to protect the innocent from being wrongly convicted even at the price that some who are guilty will walk. This system—as a system—is a check against governmental tyranny and protects us all. A criminal entering a “not guilty” plea does not necessarily say, “I didn’t do it,” but rather, “The state lacks sufficient evidence to convict me.” Professor Jack Sammons once rightly observed that a not-guilty plea simply forces the state to justify the harm it proposes to do to the accused. And Joseph Allegretti helpfully has noted that the one who represents the guilty also protects the innocent.
Protecting the Innocent. But where does this notion of protecting the innocent actually come from? God Himself. Two Old Testament (OT) passages come readily to mind. In Deuteronomy 17:6, God taught us that “on the evidence of two witnesses or of three witnesses the one who is to die shall be put to death; a person shall not be put to death on the evidence of one witness.” Two chapters later in Deuteronomy 19:5, God teaches us that “a single witness shall not suffice against a person for any crime or for any wrong in connection with any offense that he has committed. Only on the evidence of two witnesses or of three witnesses shall a charge be established.”
These two OT passages yield at least three prosecution principles:
- Due process must govern all prosecutions (“any crime or for any wrong”).
- The burden of proving guilt must be satisfied (in this instance, “two or three witnesses”).
- If this burden is not satisfied, the accused is neither punished nor convicted (“a person shall not be put to death on the evidence of one witness” and “(a) single witness shall not suffice….Only on the evidence of two witnesses or of three witnesses shall a charge be established”), even if he actually committed the crime (“any offense that he has committed”).
God Himself tells us that even if the accused actually committed a particular offense (a capital crime, mind you), he ought not to be convicted or punished if the heavy burden of proof He imposed cannot be satisfied. God imposed this heavy burden of proof precisely to protect the innocent, knowing that some who are guilty would walk.
We know that God’s Law is “holy, just (righteous), and good” and “spiritual” (Rom. 7:12, 14), and Christ taught that He did not come “to abolish,” but rather “to fulfill” the Law (Matt. 5:17). So it should not surprise us that the New Testament (NT) actually assumes, applies, and expands these OT principles beyond the criminal context. The Book of Hebrews warns believers to obey God since some who violated the Law “die[d] without mercy on the evidence of two or three witnesses” (Heb. 10:28, principles assumed). Church elders are protected from charges except by two or three witnesses: “Do not admit a charge against an elder except on the evidence of two or three witnesses” (1 Tim. 5:19, principles applied to the church). In a church dispute, Christ taught that “if [the offending brother] does not listen, take one or two others along with you [the offended brother], that every charge may be established by the evidence of two or three witnesses” (Matt. 18:16, same). Paul told the Corinthians, “This is the third time I am coming to you. Every charge must be established by the evidence of two or three witnesses” (2 Cor. 13:1, principles expanded). The NT repeatedly affirms, applies, and expands these OT prosecution principles.
Attorney as Advocate. Throughout the Bible, we are urged to imitate God and to become like Christ (Eph. 5:1–2; 1 John 2:6). We also know that Christ is our Advocate with the Father (1 John 2:1) (“If anyone does sin, we have an advocate with the Father”).
The sad truth, however, is that we all have sinned, and the “wages of sin is death” (Rom. 6:23). We all were “dead in…trespasses and sins” (Eph. 2:1; Col. 2:13). Let that truth sink in for a minute. Because we are all sinners, we each deserve spiritual death. Spiritually speaking, we are capital offenders before God. He has lain down His Law, and by failing even at one point of it, we are accountable to Him for it all (James 2:10). We may never have pulled a trigger on anyone, but according to Christ, we are spiritual “murderers” if we so much as have unrighteous anger (Matt. 5:21–22).
Along with Paul, I sadly must confess that I too am the chief of sinners. This is not false humility. It’s the sad truth. And yet, Christ, by His grace and in His mercy, not only paid my penalty by dying in my place (1 John 2:2, our “propitiation”), but He also gave me His infinite righteousness (1 John 2:1). He was, is, and forever will be our Advocate.
Just as Abraham (Gen. 18:22–33), Moses (Exod. 32:11–14), Jeremiah (14:7–9), Amos (7:2–6), and others did in types and shadows, so Christ interceded for the guilty woman caught “in the act” (John 8:1–11, esp. v. 4). Many try to minimize this account as a narrative about hypocrisy. It’s really a narrative about Christ. According to the Law, the eyewitness was to throw the first stone. Christ pleaded her case as her accusers’ judge and as Her Advocate (v. 7, “Let him who is without sin cast the first stone”). The trial ended abruptly, and the charges were dropped (vv. 10–11).
He is both judge (unbelievers) and Advocate (believers). As judge He pronounces His Law, reads the charges, and pronounces the penalty due unbelievers. But He is our Advocate. He pleads and will continue to plead for us. He defends and will continue to defend us. He intercedes and will continue to intercede for us. He comforts and will continue to comfort us.
But He also calls us to be like Him by ministering to those in need. Our ministry will vary depending on our gifts and callings. Some will minister inside the church walls, and others beyond them. Some on skid row, and others on death row. Some before a crime is committed, and others afterward. In the end, the real issue is not so much representing as it is ministering to those in need. Our Advocate did. So should we.
David Hagopian is a partner with the law firm Carothers, DiSante, and Freudenberger, in Irvine, California, where he is a business and employment defense trial attorney. He is also the editor of, and a contributing author to, Back to Basics: Rediscovering the Richness of the Reformed Faith (P and R, 1996) and is an allied attorney with the Alliance Defending Freedom.