I think you missed my point about the other prosecutor in the courtroom – which in this case was the judge. He was new and ignorant, and as such he was advocating for the prosecution – to their detriment. Not sure where you see any of this as “the point is to protect the guilty.”
ETA: It is your term, “overzealous prosecution.” I was careful to say, “too-vigorous conviction.” Please do not put words in my mouth.
Shouldn’t that judge have been disbarred? It’s law school 101 to avoid allowing things to happen that could result in an overturned verdict on appeal, isn’t it? I mean, I think I’ve even seen that on Law & Order.
To clarify: Judges pretty much have immunity against making bad decisions… else who would ever become a judge? It’s easy to make a mistake, I’m afraid. Unfortunately, the consequences for doing so can be disastrous. You’d be shocked to learn where that judge sits today.
Absolutely–the judge, I hope, would lose sleep over this one. The serial rapist even more sleep (if only due to the insufferable snoring of his cellmates).
But if I were the defense attorney, I’d really be goddamned torn up over the additional victim. I might know that the system only works with a vigorous defense, but I wouldn’t be able to escape the idea that, necessary for the system or not, if I’d not filed that appeal, that victim wouldn’t have undergone that suffering. I would have been a link in the chain.
I’m sure the defense attorney did lose sleep over this one. He was in agreement with the prosecuting attorney that the juror misconduct ought to have been explored and the taint to the jury as a whole determined. My point is, when either side does anything less than their job or the judge tries to advocate on either side (which I’m sorry to say happens pretty frequently), bad results occur.
Are the guilty occasionally set free? Yes. Are the innocent sometimes convicted? Also yes. I’m sure defense attorneys and prosecutors alike lose sleep when such miscarriages of justice occur. I never knew a single attorney who actively wanted a wrong outcome.
And I’ve yet to hear of a better way to do it. And as **Bricker **and manila pointed out, I am of the opinion it’s preferable to live in a society where guilty people sometimes go free than one where innocent people are convicted.
In my experience, guilty people going free as a result of procedural errors is very rare. Innocent people being convicted… not as rare, I’m sorry to say.
Aspenglow, did you seriously say you’ve never known an attorney who wanted a wrong outcome? If that’s true, what about prosecutorial misconduct that makes the news? Harry Connick, Sr.'s tenure as DA in New Orleans comes to mind. Mike Nifong, anyone? Not that DAs are anywhere NEAR as bad as cops in that regard, but…the shit happens. Do you deny that? And do you deny the intent to win regardless of guilt? It takes a callous asshole to be a DA, IMHO. And that’s the best I could say of that lot.
Yes, that’s true. In my personal experience of 20 years, I never knew an attorney who wanted a wrong outcome. If they did, they never shared that with me.
What they did want was a confession obtained in a dubious way to not be admitted into evidence. If a juror had substantively misrepresented their ability to serve unbiased in a case, they wanted that juror dismissed. Like that.
This of course is different than saying that it never happens. How have you interpreted anything I’ve said as meaning that it never happens? I did not say that. I said that in my personal experience, I was never made aware of it happening.
I’m sure there are some attorneys who don’t care at what cost they obtain a win. Happily, I never met one.
Laypeople’s view of the role of lawyers tends to be based on fiction, in which the particular strategic decisions and exceptional talent of the defence lawyer main character are portrayed as the key driver of the guilt/innocence outcome and are consequently much exaggerated. The reality is that most outcomes would be the same even if some other lawyer had acted, so the feeling of personal responsibility is not as large as you might think.
Much of the time the outcome is a consequence of the system as a whole. So the feeling is rarely “huh, down to my decision a vicious guilty person is free” and usually the feeling is simply “the accused was processed by the system, I did my small part, and the outcome is arguably sub-optimal for society but that’s the way the system works.”
This is similar to an argument I heard on a TV show (I know, TV is not real life, but…) where a very principled lawyer often chose the vilest cases and defended them to the utmost. His argument was something like that by doing so he was testing the effectiveness of the legal system, making sure it will, as far as possible, only convict the people who really have been proven guilty in the eyes of the law.
Otherwise it’ll just be a popularity contest. That wouldn’t benefit anyone except charming psychopaths.
But by that same logic, a prosecutor could deliberately attack people known to be innocent to the utmost, trying his best to get them convicted, saying that he too was “testing the system” to make sure that it worked and wouldn’t result in a wrongful conviction.
Yes, I know, prosecutors are a different situation than defense attorneys, but the same moral principle applies.
Except that is explicitly against the system. The prosecution cannot bring a case forward that they know to be wrong, the defense cannot bring a defense forward that they know to be wrong.
Bit of a reach, don’t you think? Agree with Princhester, that most folks don’t understand the approach of attorneys in how they look at/try a case. No one sits around scheming on how to get guilty people off. They discuss the process.
I think it could be inferred from the fact that I worked for 6 years at a public defender’s office that I have no problem working on behalf of guilty people. So why would any attorney I worked for assume that their efforts in “getting guilty people off” would be, as you put it, found unacceptable?
The OP asked if defense attorneys had qualms about getting guilty people acquitted of crimes. My response is based on my personal experience only, and the answer to that – from my own experience alone – is no. My understanding of the reason for that is because they believe in the process of advocacy on which our system of justice is based. Not sure why you are trying to make this about me or my views, which are fully irrelevant.
The defense lawyer sounds as if he/she is rationalizing.
[QUOTE=Mr. Nylock]
Lawyers do not determine the guilt or innocence of a person in the United States. In this country it is a jury or a judge that makes this determination. The role of the lawyer is to advocate strongly for his or her client.
[/QUOTE]
And yet -
That’s part of the contradiction that bothers me. When a defense attorney talks about defending guilty clients, he often mentions that guilt or innocence are only determined in court. “Beyond a reasonable doubt” is the only standard a lawyer can look to. But a prosecutor is not held to that standard - he determines innocence before deciding whether or not to try to bring a defendant to court.
I understand the motivation for doing so - we don’t want to convict the innocent - but it rather undercuts the idea that guilt isn’t guilt until convicted beyond a reasonable doubt. Because even if there is enough evidence to convict - that is, establish guilt beyond a reasonable doubt - the prosecution cannot proceed.
I don’t know that there is a way around this, but it is a contradiction nonetheless.
Regards,
Shodan
PS - Yes, I know “DAs have a different ethical standard”. I am pointing out that this different standard is based on a contradiction.
Exactly. That’s what people who argue that defense attorneys shouldn’t defend “the guilty” never seem to grasp. The person I consider obviously guilty and a threat to society is probably not the same person the person next to me considers obviously guilty and a threat to society. I think racists are a threat to society. How about if a defense attorney just tanks any time they are defending a racist, because the world would be better off if the racist were out of commission?
Actually, even a bit more sticky. Your client has an absolute right to testify in his own defense. You have an ethical obligation not to suborn perjury. These two mandates can be in tension if you know your client intends to lie under oath when he testifies.
Sometimes you might seek to withdraw, citing an ethical conflict. But that might trigger a mistrial, and the judge may not let you. In that case, since you have no choices left, you let your client testify in the narrative, and don’t argue his testimony at closing, walking the narrowest of lines between candor towards the tribunal and zealous representation.
They’re not based on a contradiction at all - both sets of ethical standards are based on the idea that it’s less harmful to society to let a guilty defendant walk than it is to convict an innocent defendant. So the DA’s standard is that (s)he can’t prosecute unless convinced of guilt (more likely to let guilty go than prosecute an innocent), and the defense’s standard is to make the prosecution prove the case beyond a reasonable doubt (same goal).
You may or may not not agree with that idea, but the two ethical standards are based on a consistent philosophy.