Can a defense lawyer not know his man "did it" because of obstruction of justice?

Factual Questions
1

While watching some police show on TV one of my friends wondered aloud and asked that if a laywer is defending a murder suspect that lawyer isn’t allowed to know/can’t outright ask the person if they’re guilty because withholding that knowledge (if it’s a “yes”) would be considered obstruction of justice.

We batted the idea around and basically ended that we didn’t know, but that it would come down to it either being illegal because of obstruction, or legal in that it doesn’t matter because the guy has a right to a fair trial regardless of the information that is being passed between him and his lawyer. Do any lawyer dopers out there know the answer to this?

2

In the United States, you can tell your lawyer anything you want about your past crimes and the lawyer is duty-bound not to reveal it. There is no issue of obstruction of justice. Of course, you can’t plan future crimes with your lawyer.

A lawyer is also prohibited from suborning perjury. So, if a lawyer knows that you committed the crime, but you convinced your grandmother to testify that you were with her on the other side of town at the time of the crime, that might present a problem for the lawyer. That’s usually why TV show lawyers don’t want to know if their client did it.

3

There is no problem with a defense lawyer knowing his client is guilty. The crime is the prosecution’s to prove beyond reasonable doubt; there is no burden on the defense at all. An attorney saying nothing is not obstruction because an attorney is not a witness and cannot be called to testify against a client except in some fairly rare circumstances. What a client tells an attorney in private is “privileged” which is to say, none of the court’s business for the most part.

Attorney-Client Privelege

Overheard in the Legal Aid lunchroom: I think he might be our rare client who is factually innocent.

4

Paul Bernardo’s lawyer went into the perp’s house and retreived hidden video tapes after his client told him where they were - and after the police had thoroughly searched the house. He pushed up a light fixture in the bathroom and they were in the ceiling.

He held the tapes for 17 months before disclosing them. Meanwhile, Bernardo’s wife played the “I’m a battered wife, I did what I was told” routine. She made a plea deal with the prosecutor, and got 10 years for raping, killing, and dismembering two teen girls. The lawyer’s argument was that the tapes showed she was as much the instigator as her husband, if not moreso.

The prosecutors were so incensed at been shown up as total idiots, they prosecuted the lawyer for obstruction. He got off. You can’t prosecute a lawyer for what his client reveals to him.

–

The only “gotcha” is that the lawyer, as mentioned above, cannot lead questioning that he knows will result in perjury. Some lawyers get by this with “tell us in your own words what happened” rather than asking “did you kill her?” if they know the answer will be a lie.

(If they don’t know what the answer is going to be when they ask the question, they should be disbarred for gross stupidity.)

Plus, they cannot conceal a future crime. IIRC the lawyer does not even have a duty to disclose any evidence to the prosecutor (i.e.tapes) although they must turn it over if specifically subpoena’ed. The lawyer only turned them over, I think, when Bernardo fired him and he had no right to hold on to them.

The lawyer cannot be asked to testify about what their client told them.

IIRC (any lawyers out there?) simply knowing someone committed a crime, or even someone confessing to you, is not something you are obliged to tell anyone, whether you are a lawyer or not. The only thing you cannot do is actively hide the fact - lie to police (i don’t know if he did it) or burn, shred, or bury or otherwise dispose of evidence that they may be looking for. However, if the police or prosecutor investigators never ask you about the case, you do not have to tell them. (I believe this does not apply to the defence investigators? They are not “justice”, you are not obstructing? )

5

Nor does it need to be someone protected by a privilege, obstruction requires an affirmative act by the perpetrator, merely not coming forward with material information is not obstruction.

The Illinois statute (720 ILCS 5/31-4) on the matter:

The elements are:

(1) With a specific intent to hinder apprehension or obstruct the prosecution (or defense) of an accused

(2) Knowing commission of the actus reus, either by destroying evidence, falsifying evidence, or hindering the compulsion of a witness (including himself)

A defense lawyer, who is merely putting on a defense, is not obstructing the trial process, so he or she wouldn’t have the needed intent to be guilty of obstruction.

6

Another point often missed by us laymen is that there is a real distinction between the putatively criminal act of which the accused is accused, and the crime of whixh ir is an element. If you stop to think about it, no trial lawyer defends a guilty client; his client is presumed innocent until convicted. Because what he is charged with may not be anything near what he can reasonably be found guilty of.

Consider the following: Smith shoots Jones causing grave bodily injury, Was it:

  1. In an attempt to kill him in cold blood, making it attempted murder plus assault with a deadly weapon?
  2. On impulse in a fit of anger, with intent to kill, making it attempted manslaughter plus ADW?
  3. As above, but with no attempt to kill, making it ADW?
  4. Under the impression that Jones, behind the bush, was a grizzly bear, making it criminally negligent ADW?
  5. In self-defense as Jones brought his gun around to bear on Smith? Acquittal is prtobably indicated.
  6. Sgt. Smith of the City P.D. shoots Jones as he (Jones) is attempting to hold up the all-night convenience store, and has just threatened to shoot the clerk. (No crime here, and probably Smith deserves a commendation.)

Even with a ‘factually guilty’’ client, the lawyer should seek conviction on the minimum possible charges against his client, if he cannot get an acquittal – because the D.A. is going for the most stringent charges possible, and the truth may well lie somewhere inbetween.