Deputy Attorney General Rosenstein Delivers Remarks at the Right to Counsel National Consortium Third Annual Meeting

Remarks as prepared for delivery

Thank you, Alan. It is truly a pleasure to be here with all of you at the Third Meeting of the Right to Counsel National Consortium.  I want to thank you each for taking the time to be here today to discuss this important topic.

I am gratified that the Office of Justice Program’s Bureau of Justice Assistance and the Office for Access to Justice focus their efforts to support and strengthen the right to counsel across the United States.  And I am so pleased that today’s meeting is here at the Department of Justice.  Our most fundamental mission is to seek justice and protect the American people by enforcing the rule of law.  This can only be done if we honor the rights of the accused.

The right to counsel is enshrined in our Constitution for a reason.  The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.” 

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law. 

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice.  

The point of the rule of law is to maintain a fair and rational system characterized by universality—that is, it applies equally to each person.  Under the rule of law, the people tasked with enforcing the law must do so impartially.

A fair and strong criminal justice system requires a robust adversarial system—one that ensures that individuals charged with a crime have their rights safeguarded.  Chief among these is the right to counsel.  As the Supreme Court said in Gideon v. Wainwright, “In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  Ensuring that individuals who cannot afford an attorney have access to effective representation when their liberty is threatened is a hallmark of a just society.  Our commitment to defending the rights of the accused is a commitment to individual liberty—and a commitment to the rule of law. 

This commitment is as important for juveniles as it is for adults.  And that’s why it is particularly meaningful that we meet today during this 50th anniversary year of the Supreme Court’s In re Gault decision.  

The Gault case began with a lewd prank phone call allegedly made by 15-year-old Jerry Gault.  After receiving a complaint from Jerry’s neighbor, the police detained Jerry and housed him at a detention center.  Later, at a hearing during which Jerry had no attorney, a judge declared that he was a juvenile delinquent and committed him to the State Industrial School, where Jerry could possibly remain until he was twenty-one years old.

Fortunately, the Supreme Court recognized that children should also receive due-process protections, chief among them the right to counsel.  Justice Fortas’s opinion acknowledged that children in detention proceedings were “subjected to the loss of [their] liberty for years.”  But—at the time—children did not have the right to assistance of counsel to help them cope with problems of law, make a skilled inquiry into the facts, insist upon fair and just proceedings, and zealously muster the best defense before the court. 

The Gault opinion acknowledges just how central the right to counsel is:  without a lawyer’s representation, how can we be sure that a defendant’s rights are protected? 

The Supreme Court ruled that children must benefit from “the guiding hand of counsel at every step in the proceedings.”  And all of us assembled here today—judges, prosecutors, law enforcement officials, community stakeholders, and defense lawyers know how true that really is.

As a former prosecutor, I do too.  I have seen firsthand the importance of a strong advocate on the other side of the courtroom.  Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf.  And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process. 

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system. 

The right to counsel is both substantive and procedural:  a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons. 

As a member of the Department of Justice and a former prosecutor, I have always been proud to work alongside our Federal Defenders, who ensure the integrity of our system of justice.

One of our nation’s greatest Attorneys General, Robert Jackson, spoke in 1940 about the role of the prosecutor. Jackson said that a prosecutor should play fair and follow the rules. Those provisos are obvious.

But Jackson also remarked that prosecutors should temper zeal with kindness, serve the law, and approach the task with humility.

A prosecutor exercises considerable discretion. To quote Judge Richard Posner, “The Department of Justice wields enormous power over people’s lives, much of it beyond effective judicial or political review.  With power comes responsibility, moral if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience, and sound judgment, not just good faith.”

Or, in a remark variously attributed to either Voltaire or Spiderman’s Uncle Ben: “With great power comes great responsibility.”

Power should be wielded in good faith and with good judgment.

Judge Learned Hand said, “If we are to keep our democracy, there must be one commandment:  Thou shalt not ration justice.” 

Prosecutors must pursue justice, which cannot simply be measured in the number of convictions.  And a prosecutor’s zealousness must extend not only to advocacy, but to the pursuit of truth, which is coextensive with the pursuit of justice. 

In the words of a 19th century Philadelphia doctor, “sincerity of belief is not the test of truth.” Truth is about solid evidence, not strong opinions.  Many people sincerely believe things that are not true. 

That’s the goal, a just outcome rooted in truth.  And I could not be more proud of the work that our law enforcement officers and prosecutors do here at the Department of Justice to pursue truth. 

That is why there is a constitutional right to counsel.  We need advocates just as zealous and dogged on the other side of the table.  Defense attorneys scrupulously examine each piece of evidence, each step in logic, each issue of law, and each decision a prosecutor makes. 

Defense attorneys are the best insurance against a prosecutor’s mistakes—trust me when I tell you that they will let you know if you make a mistake.

Prosecutors and defense attorneys may be opponents in the courtroom, but we are not enemies.  The adversarial system serves justice.  The defense bar protects defendants from abuses of power and wrongful convictions.  In all my years as a prosecutor, I have never considered opposing counsel an enemy.  Defense lawyers brought out the best in me and my staff by challenging our assumptions, countering our arguments, and questioning our conclusions.  I would not have it any other way.

Being a criminal defender can be a thankless job—it means at times representing some unpopular clients.  It means struggling to mount the best defense possible in the face of great adversity.  But, as our nation’s founders knew, this role is essential to safeguarding justice. 

Take for example the events surrounding the Boston massacre in 1770.  After British soldiers fired upon a crowd of Bostonians, killing three, John Adams famously chose to represent those soldiers.  According to the future president, on the morning after the shootings he was approached by a man seeking to find a team of lawyers to represent the British captain who was alleged to have ordered the soldiers to fire upon the crowd. 

No lawyers in town would represent the captain, save Josiah Quincy, a young man who had agreed to take the case only if Adams joined him.  John Adams agreed, and as he later recalled, he had “no hesitation in answering that Council ought to be the very last thing that an accused Person should want [for] in a free Country.”

Adams proceeded to win the acquittal of the British captain and later represented eight other British soldiers who were involved in the shootings.  Six of those soldiers were acquitted and two were convicted of manslaughter, requiring that their thumbs be branded. 

During his famous argument for the defense, Adams observed:  “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” 

Yes, facts are stubborn indeed.  And as I learned in the Maryland U.S. Attorney’s Office, so are all good defense attorneys. 

We need to all work to ensure the right to counsel is safeguarded, which is why I am excited to be here with you.  Shoring up this right is not a task just for defenders, it’s a task for prosecutors, judges and court personnel, law enforcement, and truly everyone who values the rule of law. 

When we see a breakdown in the right to counsel, it should not be something we consider tough luck for a criminal defendant, it is much worse than that:  it is a breakdown in the rule of law and the onus to act rests with all of us. 

I am proud the Department launched the Right to Counsel National Campaign.  Only through working together, across the criminal justice system, can we ensure that individuals—even those who commit crimes—are protected.  Through collaboration, we are better able to ensure that defendants’ rights are protected.  We all have a role in upholding this essential right.