[QUOTE=Terrifel]
I see no reason to exclude the attorney, who is part of the judicial process as well. Why should they alone feel no qualm when a criminal gets off lightly, if they themselves facilitated that result?
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Sure, the defense attorney might, in those cases, feel guilt about the system in the same measure as any other member of society. But he should, in my opinion, feel no extra guilt for doing undertaking his professional and ethical responsibility within the system.
[QUOTE=Terrifel]
As far as the ‘warrantless search’ example goes: yeah, I’d tend to blame the police for such an error. But do you even really need a defense attorney to find out whether a simple warrant was issued? Couldn’t an automatic telemarketer machine be designed to perform much the same function?
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No, because it’s often not that simple.
For example, searches without warrants are allowed under certain criteria such as “exigent circumstances.” But sometimes the police will (either honestly or cynically) have a different argument about what constitutes exigent circumstances than what the law itself allows. In such cases, the defense attorney has a duty to bring this to the attention of the judge or the jury, and to argue for why his interpretation of the law is correct and the police officers’ actions constituted an unlawful search.
Hell, it’s possible in some cases that the warrant exists, but that the police application upon which the warrant was issued might have been missing some relevant information. Or that the judge erred in issuing the warrant in the first place.
There are dozens of other possible circumstances in which getting to the truth, and to what is and is not lawful, requires considerably more than a mechanical checking of records. And the adversarial system makes it a defense attorney’s duty to argue as strongly as possible for the client in all such cases.
[QUOTE=Terrifel]
Oh really? Well, two can play at that game. There’s a very simple reason why you’re wrong, but if you can’t figure it out for yourself, then it would be pointless for me to tell you what it is. So, nyea.
Seriously, please don’t taunt the idiot. What is the difference between shielding a person you know committed a crime from the penalty, and prosecuting a person you know is innocent?
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Well, maybe there’s none. I concede that there is a moral evaluation here that is very subjective, and that i might never convince you (or anyone else) that there is a difference.
But we place the burden of proof upon the state for a reason. The state controls the means of coercion, or enforcement, in short, it has all the power. It should have to prove that the person committed a crime in order to justify depriving that person of liberty. And defending a person we know to be guilty is often a matter of making the state fulfill its burden of proof. I believe that if we don’t do this, we leave the door open to even more state abuse of power than already exists. The principle, in such cases, is about more than this one particular case; it’s about a system of justice that works for society.
Which is, by the way, why i might appear more critical of the OP than of the offender in this thread. I’m horrified by what the offender did, and i’ve said already that i think the penalty was too lenient. But we can fix that by changing the penalty.
On the other hand, the criticism we often see of defense attorneys in threads like this gets right to the heart of what our justice system is all about—justice itself. As Bricker suggested in the first response to the OP, it’s an attitude that implies that defense attorneys should work hard for all clients except the REALLY guilty ones.
[QUOTE=Terrifel]
Fair enough. I concede that the question was overly general. I begin to suspect that we’re talking past each other slightly. I’m not saying that attorneys should be actively policed for signs of remorse by some sort of Shame Squad. I’m just suggesting that a sense of moral distress ought to be an expected human reaction if a client they successfully defended actually committed the crime they were accused of. I assumed that’s what KarlGauss was getting at too, not a blanket condemnation of the American system of adversarial justice. But apparently this stance is mistaken, since so many people agree that it’s ludicrous for an attorney to care if their client is actually guilty or not.
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You might be right about all this. But it seems to me that, implicit in many of these lamentations about defense attorney ethics and morals, is the suggestion that they should not only care about these issues, but that they should actually allow such considerations to affect the quality of defense that they give their client.
As i said, i’m sure many of them feel some sort of moral ambiguity about particular cases, and these human reactions are, as you suggest, to be expected. But i think that much of the criticism leveled at them is about more than that; it’s about making them feel guilty for fulfilling their ethical obligations to their clients.
[QUOTE=Terrifel]
No, just the child rapist’s attorney.Seeing as how he lost the case, I tend to agree… and yet he still argued for a further reduction of the sentence, to two years’ community service. Now if a three-year prison sentence is unjust and unfair, then how is it a good thing to argue in favor of an even less just and fair sentence? But then of course, the attorney had no choice, he’s only doing his job, he’s not responsible for his own actions, he hovers above the courtroom without interacting with it in any way, etc. etc.
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But, in an adversarial system, it’s not the defense attorney’s job to decide what a fair sentence is. It’s society’s job, with the legislative branch (representing society) setting the penalty boundaries and the judge (or sometimes the jury) deciding what penalty to impose in each case. To argue that the defense attorney shouldn’t advocate for his client just because the verdict is in seems to me a denial of the adversarial system itself, and of the defendant’s right to representation. After all, if this is the case, then defense attorneys should also refuse to file appeals.
[QUOTE=Terrifel]
I just think it’s weird, is all. If a guy confides that he raped a woman, I think society would expect pretty much anyone to pass on that information so that the guy does no more harm-- except for his lawyer, who is expected to say nothing about it and do his best to conceal the fact from the jury.
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You might think it’s weird. Maybe it is. But it’s a principle that’s also at the very heart of the justice system that many Americans claim should be a beacon and an example to the world. One of the unfortunate contradictions about a truly just system like this is that the rights and interests of the bad guys are also defended, in the name of a greater level of justice for everyone.