Empires and the Right to Counsel
How Star Wars' Andor, Shakespeare, Harry Potter, and human-rights reports show the importance of defense lawyers
One scene in the excellent new Star Wars series Andor has stuck with me because it answers something that I had long suspected – there are no defense lawyers in the Empire, or at least there is no right to one. This is not surprising, and it’s a useful reminder about how our basic rights should not be taken for granted.
In episode 7, future rebel Cassian Andor is arrested when he happens to catch the attention of an Imperial trooper in the wrong place at the wrong time. He then appears – by himself – before an Imperial judge on sham charges of “civil disruption,” “anti-Imperial speech,” “fleeing the scene of anti-Imperial activity,” and “attempted damage to Imperial property.” And, within seconds, he is sentenced to six years’ imprisonment.
Lawyers matter, and empires prosper without lawyers.
Fiction has depicted this in multiple ways.
Shakespeare’s famous line from Henry VI – “The first thing we do, let’s kill all the lawyers” – is often seen as a criticism of lawyers, but Justice John Paul Stevens (among others) has argued that the line shows their value. The line is spoken by Dick the Butcher, a “rebel, not a friend of liberty,” Stevens wrote in a 1985 opinion. “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Whether or not Stevens was right, the role of lawyers has changed considerably since Shakespeare’s time when there was no right to counsel in a criminal case. English courts prohibited people from having defense counsel in felony cases until changes that occurred from the late 1600s through the 1830s. Lawyers now play a much bigger part in defending individual liberty than they did in Shakespeare’s time.
For a more modern fictional example of the importance of lawyers, think about how different the Harry Potter books would have been if the wizarding world had lawyers, a curious omission from the original books. A minor forced to participate in a dangerous tournament without his consent (Book 4, Chapter 17)? Then set up by a corrupt/misguided government agency to participate in a sham disciplinary hearing without due process or proper notice (Book 5, Chapters 7 and 8)? A decent lawyer could have saved Harry from a lot of trouble.
And now we have Star Wars to add to the list of popular-culture depictions of the importance of a lawyer in protecting individual liberty.
In the real world, the right to counsel is now almost universally acknowledged. The U.S. State Department issues reports every year about human rights, and these reports show that just about every country acknowledges the right to retain a counsel. Some exceptions are notable:
North Korea: According to the U.S. State Department, the constitution reportedly states that the accused has a right to a defense, but reportedly only in certain cases. “KINU’s White Paper for 2020 cited defector testimony that imprisonment in political prison camps was decided exclusively by the ministry, regardless of trial. There was no indication that independent, nongovernmental defense lawyers existed. There were no indications authorities respected the presumption of innocence.”
Sudan: According to the U.S. State Department, “Throughout the year some defendants reportedly did not receive legal counsel, and counsel in some cases could only advise the defendant and not address the court. Persons detained in connection with prodemocracy protests were routinely denied counsel. Persons in remote areas and in areas of conflict generally did not have access to legal counsel. The government sometimes did not allow defense witnesses to testify.”
China: According to the U.S. State Department, “[a]uthorities used the state secrets provision to keep politically sensitive proceedings closed to the public, sometimes even to family members, and to withhold a defendant’s access to defense counsel.”
While the right to have retained counsel is almost universally acknowledged, the right to have appointed counsel if you cannot afford a lawyer is not. The United States recognized the right to counsel in the Bill of Rights but did not recognize the right to appointed counsel until the landmark Supreme Court case of Gideon v. Wainwright (1963). Many countries still do not recognize this right, or they limit it to certain types of criminal cases.
Like the right to retained counsel, the right to be free of arbitrary arrest is almost universally acknowledged. Unfortunately, according to the U.S. State Department’s reports, many countries do not regularly respect or observe that right even if they claim to. And here is what the State Department says about a few particular countries:
China: “Arbitrary arrest and detention remained systemic. The law grants public security officers broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charges. Lawyers, human rights activists, journalists, religious leaders and adherents, and former political prisoners and their family members continued to be targeted for arbitrary detention or arrest.”
Burma: “The law does not prohibit arbitrary arrest. Persons held generally did not have the right to appeal the legality of their arrest or detention either administratively or before a court.”
Tajikistan: “Arbitrary arrests were common, and the law does not prohibit the practice.”
As Cassian Andor’s situation should remind us, defense lawyers matter. I believed this back when I was a prosecutor and I believe this now that I am a defense lawyer myself.
When I was a prosecutor, I had good intentions and believed I was doing the right thing. But even so, defense lawyers were an important check. I knew that my cases had to hold up to the scrutiny of another lawyer who would evaluate the evidence from another point of view. This forced me to build better cases and to be more careful in bringing charges. And on the rare occasion when I was unaware of a crucial fact or got something wrong, I was grateful to the defense attorneys who held me accountable and helped me fix the situation.
And now, when I defend someone, I get to help them through some of the most difficult circumstances they have ever faced. And I’ve managed to help address some injustices – for example, I once helped clear two people in a fraud trial by getting a government witness to acknowledge that those people were not at a meeting that the government had implied they attended.
In Star Wars, the Empire did many terrible things such as destroying an entire planet and using slave labor. And now, thanks to the Andor TV series, we know a bit more of how it could get away with those things – if the Empire ever had lawyers, it followed Dick the Butcher’s advice and got rid of them.
Sources: Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985) for Justice Stevens’ discussion of Shakespeare. Faretta v. California, 422 U.S. 806 (1975) for a partial history of the right to counsel. John H. Langbein, The Origins of Adversary Criminal Trial (2003). Anthony Lewis, Gideon’s Trumpet (1964). The State Department’s 2021 human rights reports are available at https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/ (thanks to karladaniela715 for helping web-scrape these reports so that I could analyze them much more efficiently).
About Me: I was a federal prosecutor in Chicago for 11 years and was senior counsel to the Chicago U.S. Attorney Office’s health care fraud unit. I am now in private practice with a solo practice focused on health care fraud and data analytics. I also was a newspaper reporter for the Chicago Tribune and created a news site that reverse-engineered TV shows that ripped from the headlines. And you might have heard me on This American Life.