We’re talking about a hypothetical so its easy and typical of people to frame it in a way that supports their own viewpoint. I’m not so different.
In my viewpoint, none of the things you said would happen. Since most trials are about convincing a pool of jurors to believe you and we know sometimes even good evidence is hard to make digestible, in my scenario the prosecution won’t think anything fishy is up. They’ll just think they made a good enough case. It wouldn’t affect the quality of the case they make as their goals and procedures haven’t changed, only the goals and procedures of the defense lawyer has. The prosecution still has the incentive to present the best case possible because its no guarantee that the jury will be convinced and you want to stack the deck in your favor.
Most trials don’t have a smoking gun, or hard evidence, or video. Most trials still come down to differing sides arguing what’s more likely and what inferences should be drawn from the case presented. We’re not going to have a case where the prosecution walks in, sees the crooked defense lawyer, and just rests his case. And of course not all lawyers would do this, nor do it all the time even if they did, nor would this be a giant conspiracy happening behind the scenes. It would just be a guy tanking some parts of the case by himself for a specific client, with little evidence for others to discover such a thing has happened. Thus, no consequence for the justice system at large except a few more deserving people go to jail.
You can also look at it the other way. Say the DA feels a defendant is not guilty, but knows the guy doesn’t have the resources to defend himself. Then the prosecution, in my view, should absolutely tank the case so you don’t have an innocent person go to jail. The end result is more justice, not less
I disagree with the logic of that. The moral thing to do isn’t to let another lawyer with less morals take a crack at getting the guilty man off. The moral thing would be to do everything you can to ensure that the just outcome (guilty gets punished) happen. You cannot pass that off to another lawyer and wash your hands of it. Once you know your client is guilty, you must try to get him in jail, that’s moral.
I said this isn’t a “lawyer makes a mistake” issue, its a moral one, so don’t fight the hypothetical. Only you and your client knows the client is guilty, everyone else has no opinion or thinks he’s innocent. You control the strength of the case your client can put forth. You can either do your job, or do the right thing and put this guilty person behind bars. I’m not saying your scenario doesn’t happen, its simply not what we’re discussing right now as your example punts the moral obligation down the field so you don’t have to make a tough call
Of course the world’s not going to end, but that’s not the discussion we’re having. The discussion is what’s more moral and just. Sure, OJ got put in jail eventually, but would it have been more just if he were convicted in the first place (assuming he’s guilty)? If you were asked “Which is more just: That OJ was convicted of murder and served time or he got off on murder, got sued in civil court, then years later he served time unrelated to his murder charge for theft”, which would you choose would the more moral and desirable outcome? And what about all those people who are guilty who were never put in jail? Or innocent people in jail who were wrongly convicted? What’s more moral, that lawyers get to uphold their personal code or that guilty and innocent people were wrongly or not punished?
One may hate lawyers but still acknowledge that they have the most power to fix the problems with the justice system. Or you can look at it this way: Someone could hate lawyers precisely because they refuse to exercise their power to free innocents and jail the guilty but instead they adhere to some code that they think absolves them of that moral responsibility. If they fixed that aspect of their profession, then lawyers would be hated less
It’s not a tough call. The moral thing to do is put up the best defense possible (without violating any of the ethical rules that apply–thus, you can’t put your client on the stand to lie). I can’t even wrap my head around what would be immoral about this.
Even if everyone in the world saw the defendant commit murder on live TV, the integrity of the judicial process still requires that he be presumed innocent until the prosecution executes the due process, and presents admissible evidence that proves the accused guilty beyond a reasonable doubt. As an officer of the court, the defense attorney is, above all else, ethically required to hold the judicial process to that standard, and compel the prosecution to deliver such proof to a jury of peers. That, it would seem to me, would be the test of the defense attorney’s ethics.
They shouldn’t “tank” this case. They should refuse to prosecute it. They should drop the charges.
The two sides are not symmetrical. In the US system, there is supposed to be the presumption of innocence. The prosecution is supposed to have to prove, beyond a reasonable doubt, that the defendant is guilty. Why do you want the prosecution not to have to demonstrate that?
You say people hate lawyers because they “refuse to exercise their power to free innocents and jail the guilty.” But when I am looking at a trial from the outside, how do I know who the innocent and the guilty are?
Let’s use a sports analogy. If a referee in basketball thinks some teams are made up of better people than other teams, should the referee ignore fouls against those bad people on that bad team? If you were watching that game, and saw how the referee ignored some fouls and penalized other ones, what would you feel when the game was over? Would you feel the game really represented who was the better team at basketball, or would you feel that the referee chose who would win and who would lose?
For most people, feeling like the referee is trying to be fair, and trying to apply the rules evenly, allows the result to seem fair and legitimate.
Okay, now say in that same game, should members of one team say “Well, that team over there has nicer people than my team, so I won’t try very hard to win”? If you were watching that game, and saw how some people on one team didn’t even bother to try to get the ball, just standing there with their hands in their pockets, what would you feel when the game was over? Would you feel the game really represented who was the better team at basketball, or would you feel that the players for the one team chose who would win and who would lose?
For most people, feeling like the players are really trying to win, and really want to succeed, allows the result to seem fair and legitimate.
Or take an election. Say someone is counting votes and she knows that one of the candidates is a truly terrible person. So she destroys some of the votes for that person. If you saw that person shredding votes, what would you feel when the other candidate was announced to have won? Would you feel the election really represented who was the most popular candidate, or would you feel that the person destroying votes chose who would win and who would lose?
For most people, feeling like the votes are being counted accurately allows the result to seem fair and legitimate.
The same is true of trials. The only thing that makes trials feel fair and legitimate is if the rules are being applied evenly to all defendants.
For me, I don’t want a referee deciding who wins a basketball game. She shouldn’t have that power. And I don’t want a player deciding to throw a game. She shouldn’t have that power. And I don’t want someone counting votes to decide who should win. She shouldn’t have that power. And I don’t want a lawyer deciding who should win. She shouldn’t have that power. All of these people have their own roles. Staying within those roles lets outside observers feel that the results of the conflict are legitimate.
Before I tell you you’re wrong, first I want to acknowledge that I get where you’re coming from. Something from my point of view about a topic like this, I realize, can come across like it’s a lawyer talking down to non-lawyers about the utter perfection of the systems we’ve drawn up to govern the lives of those who aren’t in the club. I don’t think the systems are perfect. There are some lawyers who don’t really care whether a guilty person goes free or not. There are even more who do care, but who have differing enough opinions about what guilt is to put them clearly on some diametrically opposed ethical spectrum from where I am. A “just” outcome for lots of people is not something I would call “just,” and that’s a big problem. So I should say that I understand what you’re saying, and I get why it’s frustrating for lawyers to fight your hypothetical and say there can’t be a unilateral case-by-case “justice” analysis, and you don’t get to be the arbiter, etc., because with the George Zimmermans of the world or whatever it’s very tempting to want to say “the world is better if he’s sitting for 10 years, even, than otherwise, so fuck what self-defense really means, I’m not making that argument zealously.”
That caveat out of the way: I’m fighting your hypothetical, and I’m saying there can’t be a unilateral case-by-case “justice” analysis. And you don’t get to be the arbiter.
We live in a country of millions of people, right? And each defense lawyer is just one of those people, and has his or her own idea of what justice is, and what a crime looks like, and who is worthy of punishment and who isn’t. One way to attack this point: why isn’t it OK for lawyer Yog to just take out a glock and dispense “justice” as soon as he knows his client is guilty of capital murder? If that’s not OK, why is the more attenuated version, where you pretend to be the person your client thinks you are, but subtly undermine his defense so that he ends up in the chamber but somebody else pulls the figurative trigger, more ethical or more just?
Those are rhetorical questions. I think we probably agree that vigilante justice is not the kind we want, and that’s the answer to the question about you offing your own client – there’s a process, that over time and over a million different iterations in a billion different people’s cases, has been refined into something that a lot of people have weighed in on, and which we think is a better engine for sorting out who did what and whether there’s anything wrong with it than just having one dude make the call. We got a whole democratic system where everyone says what they think is fair and just, and based on that whole system we design these other whole systems, and make all these rules, and say “this is what should happen, everybody gets these things, and that’s how we make sure we aren’t fucking up all over the place.”
That’s half of the answer to your question, I think, and you’ve already heard that part. The other half, in my opinion, is that “justice” in the way you’re talking about it literally does not exist in an individual case. You can’t do “justice” in one person’s murder trial; you can get revenge or satisfaction or you can avoid perpetrating a legally sanctioned crime against someone, but you aren’t really being “just” if you do it for a day. You either do justice to everyone, or you don’t have it, because the one person who you broke the rules for isn’t more valuable than the people you didn’t break the rules for, and some of them are in jail, and that’s not what justice means. The reason that Yog in Yog’s hypothetical case can’t make a unilateral call isn’t that this one hypothetical case isn’t possible or unique; it’s that your hypothetical case is possible and unique. The vanilla, everyone is a cog in the machine way of approaching that case isn’t a problem to be solved by an individual attorney, it’s the actual fucking solution we have developed to the problem of achieving justice. These statements:
are, as a result, exactly 100% backward, I think.
You keep talking about this like the one lawyer – who is you – is Batman and everyone else is subhuman in terms of their ability to process or care about these ideas. With all due respect, that is horseshit, it’s bigoted, and does not reflect reality. The reason you don’t go Batman on this one special case is because they’re all that friggin’ case. The way to “do everything you can to ensure that the just outcome (guilty gets punished) happen[s]” is to “do everything you can to ensure that the just outcome (guilty gets punished) happen[s]” in every case, and what you can do is your job.
Take the Batman route one time and what you’ve accepted is that you’re a cog in a corrupt and unjust machine that will not work toward fair outcomes in the larger picture. Once you’ve accepted that, let’s say it’s a Wednesday. If you’re not Batman on Thursday, how the fuck is that justice? If it’s justice on Thursday, why wasn’t it justice on Wednesday?
Exactly. The lawyer cannot outright lie, or lead into a lie.
Similarly, the L&O lawyer cannot lie (“they beat my client to death before he confessed, your honor - toss the confession”) but if procedure is not followed, if the rules have been broken or the police acted questionably, then it’s up to the judge to toss the evidence in the interest of justice, and it’s up to the defence to point out the problem. I’m thinking of the L&O scene where the two cops are standing in front of the door, dead quiet, one says “did you hear that cry for help?” and kicks in the door. Judge should catch any evidence as inadmissible, and look with skepticism at anything else that officer says.
Canada’s justice system (and America’s) is riddled with recurring miscarriages of justice, going back to for example when Steven Truscott was condemned to hang at age 14 after being railroaded by incompetent small-town prosecutors, or Wilbert Coffin hanged for a murder that is still in debate today. it’s not just the guilty that need the rules to be followed and every allowance made.
It amazes me for example, that the prosecutor in the Robert Latimer case could argue that he killed his daughter “because he was tired of caring for her” despite extraordinary evidence to the contrary. That seemed to be a more blatant violation of the ethics of being a lawyer than any defence attorney actions.
And again, it’s not the defense lawyer who gets evidence thrown out because the cops did it wrong. The defense lawyer just points out that they did it wrong, and it’s the judge who decides whether the evidence gets thrown out or not. Why should it be the defense attorney’s responsibility not to mention that the evidence is tainted, and not the judges responsibility to ignore the sleazy defense attorney?
Its immoral because you’re confusing what’s legal with what’s right. The law is frequently wrong, misguided, lacking, or overreaching. Its the law and we must follow it anyway? That’s your argument? What about those who defied the law to bring civil rights to minorities? Would you have been behind the fire hose, or in front of it? Its not that big of a jump to make. You are saying to follow the law because its moral, but there are instances, many in history and many today, where the law is not moral. Unless you agree with every single law, you too then have a ethical objection.
You confuse the integrity of the judicial process with morality. In your scenario, is it morally right for a defendant whose guilt is incontrovertible to escape punishment due to some flaw in our judicial process? If I stabbed someone and got off because the prosecution presented a poor case, did I suddenly not stab him? Or lets say this is a case where its not that guilt was assured, but innocence. We’ve exonerated many people on death row due to DNA evidence. Would you feel it is moral that those people were killed instead? If you were sitting on the electric chair for a crime you didn’t commit, but your attorney presented a poor case and you lost, would your last thoughts really be “well, at least the process worked”?
Suppose they can’t. The prosecutor’s not always the final arbiter of the matter. Sometimes he’s a junior lawyer or sometimes he has higher ups willing to look tough on crime. If the world works like in your example, I would certainly hope that he would drop the charges. But I think that’s passing the moral buck. The discussion is about the morality of going against the law to do something morally right. Imagine you’re someone in the cog of the prosecution who can assist in the case but not stop it. What would you do? Continue and try to put an innocent man in jail? Resign and pass the moral buck and let someone else with less scruples do it? Or realize you have an obligation to uphold justice, not the justice system, and sabotage your own case for the greater good?
Well I’m not a huge fan of some aspects of the system so I’m not going to defend it. I want a justice system more concerned with justice than winning “their side”. There shouldn’t be one or the other side, we should all be on the side of justice. While I do think we handle the majority of cases well, again, this is a discussion about your personal morals vs. your legal obligation. When push comes to shove, do you choose to serve the system or morality?
We’ve talked about the OJ case before and I think that’s one where most people rightly feel that a man got away with murder. There are also cases of people on death row exonerated based on DNA evidence. Clearly, nobody thinks lawyers get it right 100% of the time even if we may believe they get it right most of the time. So in talking about the cases like OJ, an obviously guilty man, most people would look at his defense team and think he bought himself freedom. To people criticizing lawyers, Cochran and the others should have tanked the case and put OJ in jail themselves. I don’t think it serves justice to punt the issue down later and luckily he got himself arrested on theft. But this is a man who should have been in jail in the first place. You can’t always count on a defendant getting caught later. If it looked like he was going to walk, the defense should have done something, the moral thing, and sabotaged their case. Otherwise, you serve the system and hold it up as infallible and that is pretty must injustice in action
I don’t think that’s a good analogy at all. The goal of a game like basketball is to win. Its not to play evenly. The lopsided talent pool IS the goal of every team so they can win. Plus, being born taller or with better skills is not a moral issue, its a biological one.
To turn your analogy around, I do think that winning should be within the rules and it serves the greater good of the game to eliminate cheating or unfair competition. With basketball, suppose the refs call a foul but realize they shouldn’t have. Then in that case, I’m completely ok with them ignoring a future foul from the aggrieved team to make up for it. That’s closer to the lawyer analogy because it involves breaking the stated rules to make up for the greater goal of the system. In this case, its less fair to let a team knowingly get away with something and more fair to make it up to them. And no, fining or firing the refs who made the bad call after the game doesn’t make up for it. It does not make up for the mistake in game and cannot undo the damage already done.
What is the goal of an election? To elect those who are representative of the voters, right? So shredding ballots goes against that. I think if you wanted to put me on the spot, you’d ask me if getting the right person in was the goal, and if so, would I be willing to shred ballots to do that. That’s more of a moral quandary than me seeing someone else shred ballots, as its much easier to report someone for something (or ignore it) than doing it yourself. In this case, I don’t know what I’d do. I’m a staunch liberal and believe actual people will be harmed if we get a GOP congress with a GOP president. But then I also think that Dems can win pretty easily if there is no cheating. In this case, I would say I don’t know, but not because the moral decision is harder, its because I’m less assured of the right outcome. If I could, say, push a magic button that makes Democrats win all their elections, you bet your ass I’m pushing it.
The problem is what feels fair and what is actually fair sometimes differs. Going back to OJ again, do people feel that outcome was fair? Do people not complain about how, if you have enough money, you can get yourself off? Are people in general satisfied with the justice system because of that trial or disgusted by it?
What I’m talking about is not if someone feels fair but if it actually is. I want the guilty to go to jail and the innocent to be acquitted. That’s a goal we all share. Only you would sometimes say that we need to let the system do its job because we must follow the law, even if the end result is a wrong one. I say fuck that, sometimes the system is wrong and good people must try to uphold the spirit of the law and not the letter of it.
**YogSosoth, ** all of your arguments presume flawless and omniscient actors. The prosecutor does not have perfect knowledge of the crime, and neither does the defense attorney. The legal system acknowledges this problem. You say that everyone should be on the same side (that being “justice”) but no one in all of human history has been able to articulate what “justice” objectively is or how we can implement it. Rather, we all have different ideas on what “justice” is and the best method we have come up with for implementing it is the adversarial system. If you have a superior method by which to accomplish this, please let us know.
I agree the law is frequently (or at least at times) wrong, misguided, lacking, or overreaching. I’m all for violating the law when necessary to achieve a greater moral good. Civil rights is one example. My own refusal to register for selective service at the age of 18 is another.
What I’m saying is that there is nothing immoral about defending people who you believe are guilty. In fact, it’s quite moral.
In your example, there is no conflict between the two.
Case in point. By what standard is OJ “obviously” guilty? Were you there? Did you witness it? Did you bring a camera? Many people BELIEVE he is guilty, but we do not KNOW. The Defense Attorney’s job is not to “get him off” by helping him escape, their job is to point out the flaws in the Prosecutor’s methodology.
If Johnny Cochrane KNEW OJ committed the murders, that means Cochrane was a witness rather than an attorney.
To me, this entire paragraph (and much of your argument) reeks of “the end justifies the means.” We don’t run the justice system in the U.S. that way for the reasons Jimmy Chitwood pointed out with the Batman analogy, among other reasons.
Defense attorneys (and prosecutors, and judges) are flawed and biased just like jurors. So we have a process that does the best it can (imperfectly) to take those biases out of the equation, and instead follow rules and procedures that will hopefully lead to the right outcome. When you start asking individuals to override those rules in order to reach the “moral” outcome, you’re just bring that bias back into the system.
So you just arbitrarily decide what laws to follow, based on your own ideas about what is right? So if I thought homicide laws were unjust, it would be okay for me to just start killing people, because I know morality better than the other 99.9% of society?
Killing people isn’t wrong because there’s a law against it, and it wouldn’t become right even if we didn’t have a law against it. The morality or immorality of killing people doesn’t depend on the law, instead the law reflects our mostly shared beliefs about the rightness or wrongness of killing people.
There are plenty of things that are against the law that I don’t consider to be morally wrong. Sometimes I break those laws, knowing that if I got caught I’d have to pay the penalty. Other times even though I think the law is stupid I obey it anyway, because I don’t want to pay the penalty if I get caught.
If I thought it would be morally right to kill somebody, I’d have to weigh the consequences of getting caught compared to the moral duty I felt to kill this particular person. But just because I thought killing people would be OK that doesn’t mean I’d be morally obligated to murder people, any more than thinking copyright laws are archaic obligates me to pirate music, or thinking laws against gay sex are unjust means I’m obligated to have gay sex.
If you really think defense attorneys are morally obligated to help the prosecution put their guilty clients behind bars, what you’re really saying is that there shouldn’t be defense attorneys. Is that the country you want to live in?
The thing is, it’s not that I think guilty people deserve a fair trial. It’s that I think everyone deserves to live in a country where the government can’t punish us without a fair trial. We have trials not to protect the guilty but to protect the innocent, and we don’t decide in advance who is guilty and who is not guilty before holding the trial, that’s the purpose of the trial.
Complaining that guilty people don’t deserve a fair trial misses the point entirely.
What makes me boggle at this is we in the US used to have a fine, fine system where people decided who was guilty before there was a trial. It was called lynching.
Then I’m confused. (Note: Not Really) You’re saying that certain things are objectively wrong, but Procrustus says that he, uniquely and individually, gets to decide what is wrong. So what’s the Straight Dope? Who gets to decide which laws are based in objective morality (and must be obeyed) and which laws are unjust (and may be ignored)? Because Procrustus seems to think that his personal opinion is what makes all the difference.
Everyone has to decide what laws to follow and whether they are willing to face the consequences of not following the laws. Does anyone really think that always obeying all laws is just and fair? It is easy to come up with examples of laws that all of us would be willing to violate. And of course, it is easy to come up with many examples of laws all of us believe should be followed. If President Trump and Congress pass laws requiring the deportation of all Muslims, for example, I’m not going to cooperate (and would probably seek ways to undermine the enforcement of the law). You may or may not wish to join me.
Who said “objectively wrong”? When I say wrong, I mean wrong in the opinion of this one fallible human being. Not that I categorically deny that there could be objective right and wrong, it’s just that I realize as a fallible human being I have to rely on my fallible senses and fallible brain to decide right and wrong, and if it turns out I was objectively right or wrong how would I know?
Slavery wasn’t morally right in 1864 and suddenly became wrong in 1865. The change in slavery’s legal status didn’t change my fallible human opinion about the morality of slavery.