Modern Detection

Stephen learned how to investigate not in law school, but before - when he was a reporter – and after – when he was investigating cases on the job.  As a journalist, he spent years interviewing people, trying to interview people, staking out buildings and homes, poring through documents, and analyzing data – and then explaining what he had learned to strangers.  As a young lawyer, he worked closely with some great former prosecutors on some intense and complicated matters.

Over the years, Stephen wished that there were resources or guides that he could provide colleagues or other lawyers so that they could be better at investigating. And then he read the Sherlock Holmes stories and realized that the great detective felt the same way (or at least his author Sir Arthur Conan Doyle did). Holmes had other lessons for investigators that are scattered throughout the stories, lessons that Stephen has shared in a webinar for the Federal Bar Association.  Compiling these lessons was Holmes’ dream: “to devote my declining years to the composition of a text-book which shall focus the whole art of detection into one volume.”

Holmes may not have gotten around to writing this textbook, but Stephen is trying to do so one article at a time.  Think of this as a quasi-sequel to the book that Sherlock Holmes would have written if he were real, sharing thoughts about investigative techniques and strategies using real-life and fictional examples. 

Modern Detection Stephen Lee Modern Detection Stephen Lee

Right to Counsel: The Importance of Defense Lawyers in Pop Culture

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.

One scene in the new Star Wars series, Andor, has resonated with me because it confirms something I had long suspected: there are no defense lawyers in the Empire or at least no right to one. This is not surprising and a helpful reminder about how our fundamental rights should not be taken for granted.

The Right to Counsel: A Fictional and Historical Perspective

In episode 7, future rebel Cassian Andor is arrested when he catches the attention of an Imperial trooper in the wrong place at the wrong time. He then appears alone before an Imperial judge facing 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.

cassian andor epiosde 7 scene right to counsel stephen lee law

Scene from Andor, Episode 7.

Lawyers matter, and empires prosper without lawyers.

Fiction has depicted this in multiple ways.

Shakespeare to 'Star Wars': The Evolution of Legal Defense

Shakespeare’s famous line from Henry VI, 'The first thing we do, let’s kill all the lawyers,' often viewed as a criticism of lawyers, is argued by Justice John Paul Stevens, among others, to demonstrate their value. The line is spoken by Dick the Butcher, a “rebel, not a friend of liberty,” Stevens wrote in a 1985 opinion. “Shakespeare realized that disposing of lawyers is a step toward a totalitarian form of government.”

Whether or not Stevens was correct, 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 from the late 1600s through the 1830s. Lawyers now play a much more significant part in defending individual liberty than 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 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.

Now, we have Star Wars to add to the list of popular cultural depictions of the importance of a lawyer in protecting individual liberty.

The right to counsel is now almost universally acknowledged in the real world. The U.S. State Department issues reports yearly about human rights, showing that just about every country recognizes the right to retain 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 only in some instances. “KIN’s White Paper for 2020 cited defector testimony that the ministry decided imprisonment in political prison camps exclusively, 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 pro-democracy protests were routinely denied counsel. Persons in remote and conflict areas 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.”

Challenges and Limitations in Global Legal Systems

While the right to retain 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.”

The Imperative Role of Defense Lawyers

As Cassian Andor’s situation should remind us, defense lawyers matter. I believed this when I was a prosecutor, and I believe it again now that I am a defense lawyer.

As a prosecutor, I had good intentions and believed I was doing the right thing. But even so, defense lawyers were a vital 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. He forced me to build better cases and to be more careful in bringing charges. 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.

When I defend someone, I help them through some of the most challenging circumstances they have ever faced. We 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 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. d now, thanks to the Andor TV series, we know a bit more about 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.

Stephen Chahn Lee has written about the intersection of pop culture and the law for his entire legal career, most recently in “Modern Detection,” which focuses on lessons drawn from real-life and fictional investigations. Sherlock Holmes dreamed of writing a “textbook which shall focus the whole art of detection into one volume,” Stephen’s articles attempt to fulfill that dream in the modern age. Stephen’s analysis of the Sherlock Holmes stories has been featured in Harper’s magazine, and he was inducted in 2024 as a member of the Baker Street Irregulars.

For further insights on the Right to Counsel or legal guidance on healthcare fraud defense, please contact Stephen Lee Law.

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