When Did Defending the Constitution Constitute a Campaign Weapon?
Now this is happening again, only this time during a presidential campaign.
The first time I experienced this in a political campaign was in 1998
I recall vividly when Ernesto Scorsone and Ernie Fletcher ran against one another in the 1998 election for the open 6th Congressional District of Kentucky. Both were state representatives from Lexington. The one thing I recall from the election is that Fletcher, a physician, ran ugly and distorted ads against Scorsone, a criminal defense lawyer and former public defender, that contributed to his victory. He ran ads condemning Scorsone for being a defense attorney. Specifically, he featured a video of a rape victim attacking Scorsone for having represented the man charged with raping her. While the Kentucky Trial Lawyers Association and the Sierra Club both condemned the ads, they were not pulled and Fletcher went on to win by 7 percentage points. After serving as a Congressman, he moved on to become Kentucky Governor.
I had been a public defender then for 21 years, and Public Advocate for two years. I recall feeling both anger and frustration when I saw the ads. One of the things some in the Republican Party have traditionally done is to condemn their opponents for not being “true” to the Constitution. Many Republicans have long attacked nominations to the US Supreme Court by Democratic Presidents as being something other than “strict constructionists.” The so-called “Tea Party” made adherence to the Constitution one of its fundamental tenets. Yet, here the future Governor was condemning his opponent for having defended a person charged with a crime. A figure no less towering than John Adams had long ago demonstrated the courage it takes to represent persons charged with crimes when he represented Captain Preston in 1770 for having murdered American citizens in Boston. Preston was acquitted. Criminal defense lawyers have followed Adams' example ever since, and have not been dissuaded by the cheap attacks on them by politicians more interested in scoring points than in defending the Constitution
So now here we go again, in the campaign of 2016. Donald Trump is using Kathy Shelton in his bid to tarnish Hillary Clinton. He is using Hillary Clinton's representation of Thomas Alfred Taylor, 41, charged with having raped the 12-year-old Kathy Shelton in Washington County, Arkansas. Taylor's charge carried a 30 years to life sentence. Taylor denied the charge. Clinton was a young lawyer running a legal clinic, and was asked by the trial judge to represent Taylor. She agreed. By all accounts, she defended Taylor aggressively, filing discovery motions, a motion for a psychiatric examination, attacking a statement Taylor had made to the police, and obtaining a forensic expert. Taylor eventually was offered a plea to fondling a minor, and he served a portion of a five-year sentence. This young public defender did what we would have wanted her to do.
That was many years ago. But now we have Donald Trump at a news conference on October 9, 2016 condemning Hillary Clinton for her defending the man accused of raping Shelton. He is using Hillary's representation as part of his narrative that she has “viciously attacked” women. See Fact Check.
This makes me feel just like I did in 1998—frustrated and angry. Many of us have dedicated our lives not only to defending our clients to the best of our ability but also defending the Constitution. Our jobs are hard enough defending “the least popular man in the county”. It's reprehensible that we have to defend ourselves as well for defending the Sixth Amendment.
That's not all. The Republican National Committee has run an ad against Tim Kaine, former Governor of Virginia, for his work as a criminal defense lawyer. The RNC has put out an ad attacking Kaine for his work in death penalty cases. Like the Trump attacks, this is an attack on the Constitution. “… it also takes the deeply cynical approach of attacking the Virginian for defending heinous criminals while he was a criminal-defense lawyer. The ad does not, of course, come out and call for the repeal of the sixth amendment to the United States Constitution guaranteeing the right to legal counsel. But that is the implication: Anyone whose client is a bad guy must be a bad guy.”
I am proud of what public defenders do. I have spent my life as a public defender. My son is now a public defender in Charleston. When there is a terrible case no one else wants to touch, public defenders are there. When politicians want to tout our constitutional system of law, they have public defenders to thank. When citizens want their children to receive the best defense possible, public defenders are there. When the system relies upon a good investigation, a thorough social history, a complete defense—public defense is there. I am proud of everything that public defenders do in this country.
So, Mr. Trump, get off our backs. Enough is enough.