I don’t agree. The outcomes you describe are not desired (and in the latter case, absolutely not permitted) by the rules of the system.
But our system intentionally accepts the acquittal of a guilty person, as the price to ensure our high confidence in the guilt of those actually convicted.
That same system imposes on prosecutors a dual duty: they must be both zealous advocates for the Commonwealth AND cognizant of justice: a prosecutor has an ethical duty to refrain from prosecuting a person he believes is innocent, even if he could obtain a conviction with the evidence he has. A defense attorney has no such bar.
And this is not random: it’s a deliberate choice on the part of our society. We willingly accept the risk of guilty suspects going free to minimize the chances of innocent defendants being convicted.
The role of the defense attorney has to ensure a vigorous competent defense regardless of the nature of the crime or criminal. He is not only defending his client’s interest he is also proving the competency of the prosecution case and the police actions.
If he gets his client off on a technicality then it is not his burden it is the the fact that the correct procedures were not followed. He’s testing the law. Without that function why bother with a court case at all? hand defendents over to the mob!
Here is a case in point where lawyers refuse to defend
And here is the type of lawyer he got. ( I apologise for this as you need to read more than a few paragraphs of a vile animal before you read his lawyers even more disgusting views)
But disgusting and broken as the defendants in the above cases. Defending them in court has to be better than this:
I would happily defend pot dealers and prostitutes all day, if I were a defense lawyer. I’d make a terrible prosecutor, though. I would secretly be happy when defendants guilty of victimless crimes (that also cause no real social problems) were acquitted.
I’d have no problem putting away meth dealers and users, because of what meth does to people’s health and communities. At least a meth addict has a shot at being drug-free in jail, during the time they are in there. Treatment facilities are preferable, IMO, though.
It’s a great comfort to know that the state will have another crack at that serial rapist (with the suppressed gleeful confession) after he commits a few more crimes.
Exactly. I think maybe sometimes it’s Ok to tank your defense of a client, if you think it will save more lives than the reverse. Maybe not in the case of a rapist, but a serial killer? Of course, taking a dive has its own risks, too.
Tanking your defense of a client is a violation of bar professionalism rules. If you feel you cannot, based on your conscience, defend a client, it is your duty to withdraw.
Attorneys are supposed to remain objective about their clients of they are to provide competent representation . This is the reason for the old refrain that a lawyer who represents himself has a fool of a client.
The client may be guilty, but if the government can’t prove it to the satisfaction of the jury, the person is not convicted. I don’t see any immorality here, obvious or otherwise.
Or did I miss your joke and assume incorrectly you were serious?
I think there’s a desire to make this an all-or-nothing scenario, when really it’s not.
Take the serial rapist example from before. The defense attorney has two harms to balance:
-The general harm of letting the system fall apart. Presumably if the serial rapist is convicted based on illegally-obtained evidence, it encourages the police to obtain evidence illegally in the future, thereby harming everyone.
-The specific harm of letting someone else be raped. Presumably if the serial rapist is not convicted based on the suppression of illegally-obtained evidence, he’ll go out and rape someone else, thereby harming a specific victim.
Some folks look only at the first harm and believe the defense attorney has nothing to do with the second harm. Others look at the second harm and believe the first harm is trivial or a rationalization.
I believe it’s possible to consider both harms as real, and to consider that whatever the defense attorney decides to do, one or another of those harms will come to pass partly as a consequence of her decision. Good people may weigh these two harms differently; good people may decide that the first is the greater risk, or that the second is the greater risk.
But I don’t think it’s reasonable to dismiss either harm out of hand, or to dismiss the defense attorney’s role in bringing either harm about.
Given that people are sometimes convicted and later exonerated, I wouldn’t think too many defense attorneys would feel guilt about trying anything and everything to keep the court from a finding of guilty.
Even when the defense lawyer thinks their client is guilty, they are sometimes wrong.
A related, more factual question, for our lawyers:
I was under the impression that it is a violation of ethics to represent a client whose guilt you have proof of, such as a private confession, with clear knowledge of the wrongness. My source for that information is the unimpeachable defense attorney Joyce Davenport.
No. You simply cannot allow your client to take the stand and lie under oath. You are free to argue the state has failed to establish guilt, even when he told you he did it, or damning evidence has been suppressed.
I’m fine with people not getting punished when the state can’t establish guilt. Most crimes are probably not even detected, let alone prosecuted. I don’t get punished every time I break the speed limit, or smoke some marijauna. I’m okay with that too
There is nothing remotely unethical or immoral in our system in testing the government’s proof in front of a jury. I wont lie to do it, or knowingly allow others to lie.
Since acquittal is rare, the best advice when a person is known to me to be quilty is to advise a plea.
I worked with a lot of defense attorneys in a Public Defender’s office before I became a judge’s assistant. All of them explained why they did what they did as Bricker and manila have done, and I am in complete agreement.
In short, it is the defense attorney who stands as a vanguard to ensure your rights are protected and that convictions are obtained lawfully. I don’t know a single one who lost sleep over the lawful conviction of a guilty client. I did know quite a few who lost sleep over the conviction of innocent folks, and that happens with disturbing frequency.
As for letting the serial rapist go due to a lack of evidence… does it help to know I once worked on a case where the serial rapist was let free as a result of too-vigorous conviction and as a result, raped again? The defendant was lawfully tried, the jury deliberated and indicated they had reached a verdict. Before the verdict was taken by the judge, the prosecutor advised the court they had become aware of some serious juror misconduct and asked the court to inquire of the jurors in question. The judge was new. He denied her motion. The defense attorney then asked for a mistrial. The judge denied that motion as well. He took the verdict, which was rendered by the jury as guilty. The defendant was a rather high profile, well regarded member of the community and in a post-trial motion, his attorney asked for bail on appeal. That motion was granted and the defendant made his bail.
The case was naturally appealed and two years later, it was remanded for a retrial because the judge should not have taken the guilty verdict with the juror misconduct situation unresolved. During the two-year interval, the defendant went on to rape again.
Further, we were unable to retry the case when it was remanded due to unavailability of witnesses who had either moved away or died. Had the motion for mistrial been granted, we could have got on with the retrial right away and hopefully obtained a proper conviction.
Overzealous prosecution – whether by the prosecutor or by the bench – can result in more harm than many understand. I like to think the judge loses sleep over that one.
Overzealous prosecution - So, what your saying is that the prosecution did the right thing, the judge screwed up, the defense attorney took advantage of that… and it’s the prosecution’s fault that the dude raped again? :smack:
I understand that it is the defense’s job to zealously represent their client, and that by doing so, they protect all our rights. It is my understanding that the whole point of suppressing unlawful evidence against guilty parties is to prevent law enforcement from using such tactics against the innocent*. But outside of gamesmanship, I’m not sure I understand why one has to be proud of using a technichality to get a guilty party off.
*Or maybe I’m wrong here, and the point is to protect the guilty.
