I never had to withdraw from a case. Usually clients would accept my advice not to testify (if their story is obviously a lie) or will tell the same story the jury that they told me, so even if untrue, it’s not my call to make. There is some ethical gray areas that are common, such as “I don’t want you to tell me what happened yet, I want to explain to you what the police are saying, and I want to explain the law to you. Then, you can tell me what happened…”
It’s just not true that it’s a defense attorney’s job to do anything and everything to ensure an acquittal for their client. A defense attorney is an officer of the court and they have a long and extensive code of ethics that they are legally obliged to follow.
The obvious example is perjury. Even if a defense attorney thought that encouraging the defendant or a witness to lie on the stand would help the case, they are prohibited from doing so.
And as was said above, most trials don’t come down to a test of skill between the champions of the two sides. Most trials aren’t like on TV where an impassioned speech sways the jury, or knowledge of some arcane rule turns the case inside out. In cases where both sides do their job with due diligence, the outcome would be the same regardless of what attorney is on what side. The notion that if a serial rapist got a superstar defense attorney they’d be able to rape with impunity knowing their lawyer could find some technicality to set them free is nonsensical.
isn’t it a practice of most defense attorney’s to never ask if their client “did it” ? this way, there is never a conflict and they are truly free to remain objective.
That’s not quite what I was talking about.
In one case, a lawyer cannot exercise his judgment because a lawyer’s judgment is irrelevant. In the other, the lawyer must because it is.
I understand the motive behind this, but it is still a contradiction.
Regards,
Shodan
I was really referring to DAs that attempt to prosecute people they believe to be innocent.
Even though IAAL, I actually got to sit on a jury in a criminal trial years back. All the strikes had been used on jurors earlier, so they were stuck with me.
The facts of the case (and the evidence against the defendant) were quite humorous, as the guy obviously did it and just ran into an enormous case of bad luck. (As soon as he stole a woman’s purse, he ran by a cop car, and officers got out and gave chase. They had DNA evidence on the purse and the chase route, as the guy punctured his hand on a pigeon spike when jumping a fence. They found the guy in a backyard surrounded by the purse’s spilled contents and later found the purse on the roof of the nearby house. And there’s more.)
The defense hinged on (during a 30 second period in which the defendant was out of sight) the fact that the snatcher had on a shirt and hat, and when they caught the defendant, he was both shirtless and hatless, even though they found the items along the chase route.
It didn’t take us long to find him guilty, but the interesting thing was, at one point in the trial, I saw a former law classmate walk into the court and had the defense attorney something. When he saw me, he gave me a quizzical “why are you here?” look, and I just shrugged from the juror box.
After the trial, he told me that the defendant wanted to testify. He was going to explain the situation by saying that the reason he had cut his hand was because he had been smoking crack earlier that night, and broke his pipe. He was walking around and saw a purse on the ground and he picked it up. When he saw the police, he panicked and ran. (The full story is a lot more comical)
I don’t know if they forbade him from testifying, but my friend told me that they *STRONGLY *advised that he just roll the dice as-is, and offer to plea bargain, depending on the verdict.
Too late…he’s already confessed.
Still doesn’t mean I’m absolutely guilty.
If I were defending someone I felt very likely to kill human(s) when set free, I’m going to do a barely-adequate job defending him or her, just enough to avoid a successful appeal based on the quality of my defense. However, this obviously is a rare circumstance.
If 5 Dopers are posting in a thread, 6 of them are guilty! Of Mopery!
Dopery Mopery, doc?
Heh 
There are plenty of people locked up in US prisons who were coerced to plead guilty or convicted when innocent with a defense that amounts to no defense. So, you do live in that country.
In my experience, people who find excuses to violate ethical codes start making other exceptions. After all, if you think you’re above the rules, why would you abide by them?
If you want the rules to be different for those accused of murder, make a case for the rules to be different. Just saying that the defense attorney should substitute their judgment is not a principled rule, it’s an attempt to push off the state’s responsibility to prosecute effectively onto the defense.
I suspect that the majority of lawyers on some kind of power trip satisfy it by just being part of the system. There might be a few prosecutors who get a kick out of seeing just how much they can charge someone with, rather than considering what is fair or just, but IME, the kind of “screw the system” people who would have fun mucking things up, probably would never get through law school.
I would suspect that in a case like this, the case would be dismissed “without prejudice,” in other words, the case would be too weak to proceed without the confession, but the police would be free to continue to gather evidence, and the DA could re-present at a later date.
And the lawyer should feel good about her role in giving the police pause if they consider doing this again at a later date.
It isn’t always the act that is in question: sometimes it’s simply whether or not the defendant did it. It’s a point worth noting, because a lot of men who have been exonerated by DNA of rapes had been misidentified, but there was no question that a rape took place.
It’s not ultimately up to the defense attorney to file an appeal. In some cases an appeal is automatic. In others, it’s up to the defendant to go ahead with an appeal. I believe that there is sometimes even still room for plea bargaining after the verdict that may involve whether or not the defendant appeals.
Also, FWIW, attorneys don’t like to spend their time arguing losing cases. If they have a clearly guilty defendant, they’re going to advise him to plea bargain, and save their arguing to get the best deal they can. If the defendant knows he’s guilty as well, he’ll probably accept a good plea bargain.
Sometimes trials happen because the defendant thinks he can charm the jury, and sometimes because he’s batsh!t crazy and wants a forum, but other times, the defense attorney truly believes the defendant is not guilty of the charges. For example, say the defense attorney truly believes the defendant’s claim of self-defense in a case where someone is being charged with attempted murder, and the defense attorney tried everything she could to get a plea bargain for assault that involved house arrest and community service, but the DA refused to budge in insisting on prison time, while holding the threat of the attempted murder charge out hoping it would pressure the defense into taking a plea with prison time. Finally, the defense said “Let’s go to trial,” because she knows that the evidence for attempted murder won’t stand up. In that case, the attorney knows for a fact that the assault happened, but doesn’t think the incident amounts to attempted murder, and may have a witness to say the victim provoked the attack; she’s pretty confident in an acquittal, or at least a hung jury. Maybe she thinks the defendant deserved community service for not stopping the assault when the victim clearly wasn’t fighting back, but she thinks getting off scot-free is fairer than 20 years in a maximum security facility, and she’ll sleep a lot better if he’s free, than if they lose, and he gets a long prison term.
In this hypothetical situation, I think the guy that should be feeling guilty is the cop that illegally obtained the evidence.
I don’t understand the charges, sir.
Ahhhhhhhhhhahahahahahaha!!! No. With respect, and I believe you are actually an attorney, but no. Prosecutors or Commonwealth’s attorneys care about winning/losing percentages, and apparently after about six months on the job they don’t give a damn about justice. They are completely willing to prosecute or threaten to prosecute cases where they have direct evidence the person could not have committed the alleged crime.
I’ve seen a prosecutor offer a “plea bargain” for an alleged crime they absolutely knew could not have been committed and threatened that if the offer wasn’t taken they’d go for the full trial. The person was financially able to afford to call their bluff, and they ended up dismissing the charge completely. That made quite the impression on me on how much they cared about “justice”. And that they only tend to take “justice” into account if the person has the financial means to defend themselves.
I’ve also seen a prosecutor direct indict someone after a Grand Jury returned a not true bill. Which made me question the point of a Grand Jury completely. Why bother?
They may have an “ethical duty” written somewhere, but they do not, as a matter of course, pay any attention to it. Winning/Losing percentages are what matter. Not justice.
I respect that you are an attorney, but direct experience tells me that in this, you are incorrect as a practical matter. /shrug
Regards,
-Bouncer-
He said they have an ethical duty, not that they live up to the duty.
Good point.
In general, I think guilt is not a commodity: it’s not something that gets divided up like bread, but instead something that gets shared like the flu. Everyone involved in a chain of actions with a foreseeable unfortunate consequence gets to feel bad about their part in it, not just the first person, or the person with the biggest part, or whatever.