288. "As McVeigh Trial Shows, Justice Must Serve All," USA Today, (May 28, 1997).

As Timothy McVeigh's defense now presents its side of the case, there must be a way to vigilantly protect the suspect's rights while also preventing his lawyers from making a mockery out of the courts.

Lawyers have long argued the notion that allowing criminals to get away with murder is a price we must sometimes pay for our adversarial system of justice. It is ff awed, they argue, but still the best there is. Everybody, they maintain, is innocent until proven guilty. The best way to ensure a fair trial, they claim, is for defense attorneys "to do all they can for their clients" and for the government to try to present its case.

That however, should not include allowing lawyers to distract the jury with theories that have no foundation in fact theories they know are in effect clever lies.

U.S. District Judge Richard Matsch has already prohibited McVeigh's defense team from introducing their theory that international terrorists were to blame for the bombing. Still, on the opening day of their defense last week lead defense attorney Stephen Jones introduced testimony about an unidentified left leg with a military-style boot that was found in the rubble. His intent though he did not state it directly, was to suggest that the real bomber was killed in the blast.

The fact is, all adversarial systems have some rules that limit what the parties may do to one another.

Football rules prohibit ramming. Ice hockey penalizes slashing. Even nations at war recognize the Geneva Convention. So, too, our judicial system already has limits that are ensconced in law and in the ethical code of the legal profession. For instance, a lawyer may not counsel his client to destroy evidence or to perjure himself. While it may be surprising news to some, lawyers aren't supposed to be hired guns, but professionals with moral commitments, who must also be concerned with the common good.

Lawyers go ballistic when one suggests that these rules could be augmented without destroying the adversarial system. Still, reform is necessary if the system is to survive rising public disgust

Before the bombing trial began, two independent news sources reported a memo in which McVeigh had confessed to the bombing, Soon thereafter, McVeigh's lawyer said the memo was a fake and was intended to persuade a witness to talk.

If McVeigh had indeed confessed, shouldn't his lawyers have pled him guilty? If the memo was a fake, doesn't that raise serious ethical questions about his lawyer's conduct?

Some changes would ensure that those who commit crimes will have their day in court but that justice also will be served:

• If a client confesses to his lawyer, or if the incriminating evidence is clear and present, the lawyer should be barred from pleading his client "not guilty." But the lawyer should be allowed to inform the court if true, that the client 1) was under pressure to confess or 2) was believed to be covering for someone else. And the lawyer might point to the limitations of the incriminating evidence.

• Lawyers would be allowed to bring up mitigating circumstances in the sentencing phase. Maybe McVeigh was abused as a child, or was brainwashed by the militia. McVeigh should be allowed to express remorse, if he has any.

• Lawyers should be prohibited from lying. They should not be allowed to present a theory that explains away the charges against their clients if there is no shred of evidence to support that theory.

• Finally, lawyers could require assistance from referees to bring about these needed changes: judges. A judge who adds a footnote to his or her opinion expressing displeasure with a lawyer's conduct will have a lasting effect according to David Andrew Price, a lawyer and legal affairs writer for Investor's Business Daily.

Trials that attract national attention provide object lessons in justice. Let this one be a good one.

Amitai Etzioni is a professor at George Washington University and author of The New Golden Rule.

The Communitarian Network
2130 H Street, NW, Suite 703
Washington, DC 20052
202.994.6118
comnet@gwu.edu