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Beware the GOP for attacking the right to effective criminal defense counsel

Fairfax criminal/DWI lawyer pursuing the best defense and breathing life into the Sixth Amendment guarantee of effective assistance of counsel

Oct 09, 2016 Beware the GOP for attacking the right to effective criminal defense counsel

The Republican and Democratic parties are in so many ways like Tweedledum and Tweedledee, which will continue until we dismantle the primacy of the nation’s two-party system that, by definition, is hardly democratic.

The great bulk of both parties’ politicians do too little to protect civil liberties, too much to perpetuate their power and politics as usual, and too much to embrace and spend on excessive law enforcement, national security, and militarism.

To the extent that material differences exist among the two parties, Democratic politicians include too many who embrace too much government spending on social programs. Republican politicians include too many who embrace too much government spending on the military, national security, and the criminal justice system. Democratic presidents more often than Republican presidents are more likely to nominate fewer judges who will do the greatest damage to civil liberties.

Hillary Clinton and TIm Kaine are but perpetuators of the moderate (at least not liberal) Democratic status quo. Donald Trump for decades donated to and hobnobbed with the political status quo in the name of enhancing his riches, now rails against the political status quo without giving much in realistic specifics about what he would do to beneficially alter the status quo, and resonates with a slew of people fed up with the status quo. Therefore, with Hillary Clinton, we are assured a lousy president. However, with Trump, we are assured an exponentially lousier president, who is a loose cannon, xenophobe, racist and racism-enabling, zipper-challenged (and woman-objectifying), demagogue, so-called populist (more populist and off-the-cuff than Republican at all), not-ready-for-prime time politics, megalomaniac. With a president Trump, we are assured incalculable, decades-long damage with racism, the economy, civil liberties and more.

The Republican National Committee and Republican politicians are caught with a nearly impossible choice between turning their backs on Trump and thus seriously weakening the Republican party for who knows how long, and embracing Trump (which the RNC continues doing) and thus seriously weakening the Republican party for who knows how much longer. A path of navigating between those two extremes seems unnavigable.

What does the desperate GOP do shortly before last week’s vice presidential debate? It sticks its foot in its mouth by pillorying Tim Kaine for doing one of the few things I can praise him for, which is to have served as a criminal defense lawyer for those charged with heinous crimes, commuted at least one death sentence while a governor, and at least struggled morally before letting other executions proceed forward. The only nice thing I can say for this GOP pillorying is that but for the GOP’s attack, I would not have known these good things about Kaine. The Republican Party’s text attack on Kaine’s criminal defense work is bad enough, and its anti-Kaine commercial (which the party may have tried taking down from YouTube (The Hill’s and Los Angeles Times’s link to the commercial is no longer active), which I have found to be active here) is even shriller.

The RNC’s October 2, 2016, attack ad on Tim Kaine’s criminal defendant client roster descends to gaping depths after its opening of “Long before Tim Kaine was in office, he consistently protected the worst kinds of people.”

RNC communications director and chief strategist Sean Spicer on October 3 proudly tweeted and soon after deleted: “Exclusive: Republicans Launch Willie Horton-Style Attack on @timKaine…” (See here on the racially charged attack ad against then-presidential 1988 candidate Michael Dukakis, whose furlough program enabled Mr. Horton’s raping a woman and assaulting her fiance). See more here on Spicer’s tweet about Willie Horton and Tim Kaine.

On October 4, Spicer downplayed his Willie Horton tweet, but fully stood by and deeply entrenched himself in the RNC’s attack commercial against Tim Kaine’s criminal defense work.

Donald Trump, who does not even seem to have the attention span to read Cliffs Notes summarizing a novel, is a non-lawyer (not that a good president needs to be a lawyer) who should not be expected to understand nor be sensitive to the Bill of Rights’ Sixth Amendment guarantee of counsel to criminal defendants, the Supreme Court’s determination that said guarantee means effective assistance of counsel, and the line of Supreme Court cases that ultimately guarantees court-appointed or public defender lawyers for those criminal defendants who cannot afford counsel.

Plenty of Republicans do understand the Sixth Amendment’s guarantee of effective assistance of counsel. For starters, in my backyard is lawyer David Albo (R-Va.), who at once (and sadly) is a stalwart to keep capital punishment in place in his role as Chairman of the Virginia House Judiciary Committee, but who also does criminal defense work, and has been both a public defender and prosecutor. Republicans who dissent from the GOP’s attacks on Kaine’s prior criminal defendant client roster should join in speaking out accordingly.

Although I am not fond of Hillary Clinton’s revealing her belief that her client charged with rape had a false clean polygraph, I do think more highly of her than otherwise that she in 1975 (only around two years out of law school) not only stayed with her defense of that client (although she did request a discharge from the case), but obtained a favorable result for him after substantial work on his behalf. 

I will point out that Kaine needs to stay on the high road by being careful about attacking other lawyers for their client rosters. In 2004, in pushing back against Kaine’s gubernatorial opponent’s attacks on Kaine’s discomfort with the death penalty, Kaine’s spokesperson Mo Elleithee accused opponent Jerry Kilgore of having “‘represented some very shady characters during his years as an attorney,'” and the Washington Post says Elleithee characterized Kilgore as once defending “a hospital executive who embezzled money and of being the lawyer for a state worker who falsified safety inspection reports for mines.” If those Kilgore clients were criminal defense clients, then Elleithee was engaging in the same wrongheaded attack as the RNC’s October 2 attack ad against Kilgore.

I Googled without success to find any comment by Donald Trump about the RNC’s October 2 attack ad on Tim Kaine. Instead, I found Trump’s contempt for the Sixth Amendment right to the effective assistance of counsel, when he harped on the likelihood that Chelsea bombing suspect Ahmad Khan Rahami “will be represented by an outstanding lawyer.” (Trump also believes in trying suspected U.S. citizen terrorists before military commissions, even though they have the Constitutional right to a civilian trial against criminal charges.)

Contempt by the GOP and Trump for the Sixth Amendment guarantee to the right to effective criminal defense counsel can translate into contempt against nominating judges with criminal defense experience (and thus stacking the courts all the more with former prosecutors often with an insufficient ability to fully appreciate criminal defendants’ Constitutional rights), against protecting the civil liberties of the criminally accused, and against sufficiently funding public defender lawyers and court-appointed criminal defense counsel. Plenty of people accused of crime are innocent, and plenty of otherwise law-abiding people get charged with DWI and other minor offenses, so everyone — even if on a selfish basis — needs to be concerned about politicians who seek to curb criminal defendants’ Constitutional rights.

Does the GOP really think that the mentality and sensitivities of the voting population is so low that the GOP will on balance gain more Trump votes than it loses — and gain more people sympathetic to the GOP than the party alienates — over its attack on Tim Kaine’s prior criminal defense work?

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