From my perspective in Canada, this is an over-statement.
If the client tells you he did it, that doesn’t automatically mean the lawyer must withdraw.
Rather, it drastically reduces the scope of the defence. The lawyer cannot lead evidence or suggest the client didn’t do it.
But, the lawyer can do everything possible to challenge the Crown’s evidence. Was the eye-witness wearing his glasses? Had the police properly calibrated the breathalyser? Had outside hackers tinkered with the damning computer files?
The accused has the right to test the Crown’s case, to ensure that the Crown meets its burden of proof beyond a reasonable doubt.
Confessions of guilt might not always be believable.
A simple example is a criminal conspiracy where one member (the one currently on trial) agrees to go down for a relatively minor offense by confessing to crimes they did not commit. If a defense lawyer (barrister, solicitor, law-talkin’ guy, whatever) thinks that maybe a full confession is fraudulent, what are they advised to do?
Without wishing to challenge the general point about the duty of a defense lawyer, what is the ethical position when a defense lawyer cites statistics that he knows are deeply flawed, but are likely to deceive juror?
In the OJ case, Cochran stated a correct but misleading statistic along the lines of “only 1 in 100,000 husbands kill their wives”, with the implication (I don’t recall if he stated it explicitly) that there was only a 1 in 100,000 chance that OJ is guilty. The relevant statistic, of course, is that if we know the wife has been murdered, in perhaps 50% of cases the husband killed her.
Setting aside the fact that the prosecutor should have clarified the statistical fallacy, it appears that Cochran sought to deliberately mislead the jury. Does he get away with by claiming that he did not technically lie, and asserting his own ignorance of statistics? Should he have been sanctioned?
If a lawyer knows his client is guilty, he cannot conduct an “affirmative” defense-that means that he/she cannot conduct a too-vigorous defense. as a practical matter, the lack of an affirmative defense is a de facto acknowledgement of guilt. So we move to the next point: if the defense lawyer finds out that the investigators (police) failed to fill out a report correctly, he/she may use this as a point to request that the case be thrown out. This is how atty. Roy Black defended the Kennedy cousin (William Smith) who in fact raped a woman in a drunken Palm Beach ,Florida attack. That is why trials have little to do with guilt or innocence-they revolve upon procedure and technicalities.
Transfer your theory to another profession. Suppose a doctor gets a patient who he “knows” is guilty of some terrible crime. Should the doctor intentionally tank the operation so the patient dies?
The ideal is that the legal system works. It’s supposed to provide opportunities for innocent people to evade false convictions. The theory is that a guilty person has a solid case against him so, even when his lawyer makes the best possible defense, the accused is still found guilty.
Each of those are a horrible event, agreed.
But why would either one be worse than an innocent person sent to death row? I mean, is an innocent person killed in the electric chair somehow less tragic than an innocent person killed by a serial killer?
And, I will be anything you want that there are far, far, far, more proven cases of innocent people sentenced to death than there are of serial killers being freed and killing again.
Given those odds, it seems we’d be better off with more, better defense lawyers and worse prosecutors.
No shit. The OP demonstrates that knowledge in the post and then, if you bothered to make your way to the end of the very short post, asks if it also happens to be true in real life. Poor form.
No. Society wouldn’t be better off if half the accused were poorly defended because their lawyer had decided that they looked guilty. It wouldn’t be better off, either, if police, prosecutors, etc…began to take liberties with the laws when they accused is “obviously” guilty because they expect that lawyers will also turn a blind eye to their shenanigans in order to make sure that the “obviously guilty” guy will end up behind bars.
Only if rules are strictly enforced will individual liberties be protected. If lawyers stop making sure that not following the rules means that your alleged serial killer/pedophile will be freed, soon police will search your home without a warrant, will kick you in the balls to get a confession and will make up evidences against you because they’re really, really sure you’re the man they’re after and they know that no lawyer worth his salt will object to this because you’re so obviously guilty.
And of course getting a fair trial or a soviet-style trial where your lawyer is on the same side as the prosecution would become entirely dependant on your lawyer’s mood, whims and opinion wrt your guilt and the fate you deserve (unless maybe you can pay him enough to make him forget his scruples about properly defending the piece of shit he thinks you are).
Basically, in such a situation, your lawyer would be your judge and jury : fail to convince him that you’re not guilty (maybe precisely as a result of the “evidences” illegally created or collected) or at least that ou have extenuating circumstances, and you’re toast before your trial even began. Or he can just get lazy : if this mindset about the duties of a lawer was prevalent, who would go after him for not properly defending a serial killer (even if your conviction was mostly the result of your lawyer being more interested in the latest news in a people magazine than in actually defending you during your trial).
In fact it might even be prudent for him not to try too hard to defend people accused of horrible crimes. Some people have not just threatened, but physically assaulted the lawyers of notorious alleged criminals (I remember a case where a crowd began to throw stones at a lawyer present at a crime scene). If there was a general expectation that lawyers shouldn’t make every effort to defend a “bad” case, it would become potentially dangerous for a lawyer to defend (or at least to defend efficiently) someone already found guilty by the public opinion and/or the medias.
I’ve never had the slightest issue with lawyers taking on the most undefensible cases and using any trick to get the best outcome for their client. At the contrary, I’d like all of them to behave like that.
Because in fact, I don’t agree that such instances exist. Or at least I can’t think of any such situation at the moment. Maybe you could conjure up some weird scenario where it would be true, but in any case I can think of (like a lawyer 100% convinced that his client is a monstruous and remorseless serial killer), no, IMO the moral thing to do for a lawyer is always to defend his client to the best of his abilities.
Maybe I’m wrong about it, but it always seemed to me that the job of a lawyer is easier than the job of a judge. I don’t think I would have troubles sleeping after defending a repugnant murderer, but I probably would if I had sentenced someone while doubting his guilt, or if I disagreed morally with the law I had to implement (which would inevitably happen from time to time).
And how do we know that? How do you figure out this percentage? You can’t just base it on the number of people sentenced and later exonerated, since it’s quite unlikely that you’ll be so lucky that sufficiently obvious evidences of your innocence will appear after your conviction to get you a new trial.
So how exactly do we know that, say, 50% of people arrested, prosecuted and sentenced aren’t in fact innocent? For mostly all purposes, the only definition of “innocent” we have is “found not guilty in a court of law” and the only definition of “guilty” we have is “found guilty in a court of law”. There’s no way I can think of to determine who is “factually innocent” and who is “factually guilty” that would allow us to figure out what is the real percentage of people wrongly arrested, wrongly prosecuted or wrongly sentenced.
Even if the defendant confesses, it doesn’t necessarily mean they did it, and even if they did it, it doesn’t necessarily mean that it was a crime, and even if it was a crime, that doesn’t necessarily settle what crime it was.
For the first case, the defendant might be trying to shield a loved one who actually did it. For the second, you might have something like a killing in self-defense: Yes, the defendant killed the victim, but it wasn’t a crime to do so. For the third, you have things like degrees of murder: Maybe the defendant killed the victim, but was it premeditated? A good lawyer has an ethical duty to get the best result possible for his or her client. That might mean a verdict of not guilty, or it might mean that they only get found guilty of manslaughter instead of first-degree murder.
One reason is that it’s perfectly valid for a jury to say “We think there’s a good chance the defendant is guilty, but the prosecution hasn’t met its burden of proof.”
Acting as a check on a sloppy / lazy / corrupt criminal justice system is an important function of a jury.
My point is, why is it when the hypothetical obviously guilty serial killer goes back on the streets is it only supposed to be the defense attorney that has trouble looking themselves in the mirror the next day? He’s the guy who should have prevented this? What about the cops, who fucked up gathering the evidence? What about the prosecutor, who fucked up the case? What about the judge, who fucked up applying the law? What about the jurors, who fucked up interpreting the facts? What about the legislators, who fucked up creating the law?
If this guy is so obviously guilty, then why is it that the rest of the justice system couldn’t perform their jobs to put this obviously guilty person behind bars? Why is it only the defense attorney who should feel bad? Everyone else fucked up their jobs, and according to some here, it’s the defense attorney who should feel bad for NOT fucking up his job?
Yes, it’s bad when obviously guilty serial killers walk free out of the courtroom. When that happens, blaming the defense attorney is ridiculous.
It turns out in actual fact that it is very common for people accused of a crime to have actually committed the crime. It would be very disturbing if this were not the case, if it were true that a large fraction of the people accused of crimes were factually innocent it would mean the cops and the prosecutors are routinely railroading innocent people. Defense attorneys represent guilty defendants all the time. That is their job. It is an essential part of the justice system. If you would have a problem representing guilty people then the job of a criminal defense attorney is not for you. That doesn’t mean it’s a job that doesn’t need to be done.
If you think that a defense attorney shouldn’t do his job if they think their client is guilty, why even have a defense attorney in the first place? It certainly is possible to do away with defense attorneys and prosecutors and have a single person decide the case. But in that case it would be the judge’s responsibility to act on behalf of the defendant if the case wasn’t strong enough to send the defendant to jail. If the judge didn’t do that, then merely being accused of a crime would be enough to send you to prison, or in front of the firing squad. Is that the system we want? The prosecutor decides what crimes you are guilty of, and decides the punishment, and the trial is merely a formality to rubber stamp the prosecutor’s decision?
There’s a difference between following a law even if it gets a guilty person off (or jails an innocent person), and following a law if you disagree with it. I believe the role of the justice system is its namesake, justice. In no world is it better to have an innocent person go to jail because its technically legal, and in no world is it better for a guilty person to get off because he technically got off. Neither of those is justice served. In the former you punish someone who doesn’t deserve it, and in the latter the guilty are not punished and victims do not see justice.
However, I can understand why some laws cannot be simply ignored if its bad. Its on a case by case basis though, and I will take the good with the bad. I’m happy about and support people sitting in lunch counters, marching for rights, demonstrating against injustice, and refusing to sit in the back of the bus. That was necessary change to terribly injust laws that needed to be changed immediately. On the other hand, if its less serious stuff like you don’t agree with how your taxes are being spent, then I don’t support you bombing the IRS.
Good people can differentiate between what is a severe injustice that requires illegal action to change, and what is less unjust and you should probably do better changing things in court or at the ballot boxes. And I’m not saying one can’t make a mistake, or have different priorities. But anyone who insinuates that if a lawyer breaks one law to get one bad guy in jail, then he might as well be the god arbiter of all laws and why does he get to decide our justice system for us is making a huge mistake.
If I were a lawyer, I wouldn’t do this with every single guilty person. Some I would think their crimes are not so severe, so even if I knew he, for example, stole a car from a dealership, I wouldn’t risk it or it wouldn’t rise to the level where I’d have to run interference. But if I got a guy who killed someone, and I think he’s about to get off, I’d totally sabotage the case. That doesn’t mean I’ll do it for the next murderer, but if its justice we’re talking about, even if I do this for 1 in 5 cases, it’s still more just than if I just did my job and got all of these guilty people off.
With a doctor it depends. First, their jobs isn’t to get a guy off, he can still heal him and trust the justice system to apply the appropriate punishment. Second, unless this is the death penalty we’re talking about, the doctor’s botched surgery may be too harsh for, let’s say, a carjacker. Third, there are plenty of people who feel that a long prison sentence is much worse than dying while you’re unconscious on an operating table. Killing the evil patient might be denying the victims actual justice. In the lawyer example, throwing a case to get a guilty person in jail would never deny the victims justice, it would be ensuring it.
But he’s not innocent. The scenario is that if a lawyer knows his client is guilty, should he throw the case. The question is a moral vs. legal one, not a “could the lawyer have erred” one.
Why do you think the legal thing always equals the moral thing?
Yogsosoth, what do you think the consequences would be within the justice system under your scenario? Let’s say lawyers decided to “tank” cases any time they believed their client to be guilty of the specific crime(s) charged (we’ll leave out lesser offenses and other mitigation to keep this as simple as possible).
So, imagine that:
[ul]
[li]the sum of evidence against the defendant is pretty weak [/li][li]the police fail to properly document and preserve evidence at the crime scene[/li][li]the police fail to give the prosecution information that might make it harder to win (such as mentioning a witness whose description of the suspect doesn’t match the defendant)[/li][li]the prosecution fails (intentionally or otherwise) to give the defense some of the information the law requires them to turn over to the defense[/li][li]the prosecution suggests (without explicitly stating) to the jury that despite not having compelling evidence, the defendant just looks guilty[/li][/ul]
And imagine that, despite all of this, the defense attorney believes from talking to the defendant that the defendant is guilty, so he “tanks” the case, as you suggest.
Do you then imagine that this won’t have any impact on the level of care taken by the police and prosecution in future investigations and trials? Where is the incentive for things to be done the right way going forward? I’d argue that a defense attorney has an absolute moral obligation to put forward the best defense possible in each and every case because, among other reasons, it’s the best way we have to ensure anything close to a fair trial for all defendants.
I think the “moral” thing to do in such a circumstance is withdraw and let another lawyer defend the case.
I have tried to win murder cases. Believe me, in 99% of the cases, there is no need to “throw the case.” Judges and juries are quite willing to do what is necessary to achieve a conviction. For example, suppression motions that might work in a drug case will fail in a murder case. If the lawyer “knows” the defendant is guilty, the probably everyone knows it.
Finally, it is not the end of the world if a guilty person is acquitted. It happens (rarely). Perhaps it happened in the OJ case. The world didn’t end. He didn’t kill anyone else. He is in jail for other crimes. A civil case resulted in a judgment against him. Thus, even the poster child for “getting away with murder” doesn’t really show any real harm to society. A lawyer failing to do his job to the best of his ability, however, upsets the premise of our entire justice system.