“In this life you must be oh so smart, or oh so pleasant. For years I was smart. I recommend pleasant.” -Elwood P. Dowd in “Harvey”
I thought about this one last night, Diceman. I don’t think the “time served” avenue would work. That’s be like giving everyone who wrongly served time some sort of “prison credit.” Can’t you just see some guy serving two years only to be exonerated. Since he has a two-year time served credit, he can then go knock off the loacal 7-11 with no repercussions.
HA! AS IF!
A lawyer would do anything to get his guy off even if the guy tells the lawyer he did it. That is what gets the the most, there is no mention in the Constitution about this rule that anything the lawyer learns cant be used against the guy, but who makes up the rules? RIGHT! Judges and lawyers. Even in Congress most people are lawyers. They all have a self interest to keep the corrupt system going. So if a guy actually confesses to the murder to his lawyer and says where the murder weapon is the lawyer won’t even tell the police, and for this he is “ETHICAL.”
Yeah right.
Oy. One of these days, I’m going to open a thread in The Pit called “Lawyers: Below Pond Scum or Defenders of Democracy?”
And then when one of the legal question threads in GQ degenerates into a “lawyers suck” rant, which they always seem to do, I’m just gonna link everybody there.
Change Your Password, Please and don’t use HTML, as it has been disabled, but you can learn about superscripts here
How is what I said off topic? Bricker answered a question wrong by saying that a certain course of action would never happen because lawyers are ethical and wouldn’t let it happen. I replied that lawyers are not ethical and gave a specific example of how they are not. You can’t let Bricker answer and put his little editorial comments in there and then censor mine.
Bricker made a specific factual assertion which may be restated thusly: “It is a violation of the Ethics Code of each state’s Bar Association to encourage a witness to make a statement which the attorney knows is inadmissible as evidence and prejudicial to the case.”
A proper refutation, if one exists, would be something along the lines of “Your statement is incomplete. Whilst an attorney may not coach a witness to make such a statement, the rules do allow him to fail to coach the witness not to make the statement and hope for the best. So to say an ethical lawyer ‘would not want such a thing’ is misleading.”
An improper (for this forum) refutation is “Lawyers are not ethical and the whole system is set up to benefit them.”
And of course I censored nothing. Your statement is still there for all to see.
Hope this helps.
Change Your Password, Please and don’t use HTML, as it has been disabled, but you can learn about superscripts here
To Manhatten’s able commentary I will only add this: buried in the depths of this rant is actually a question of some merit: from whence comes the attorney-client privilege? It’s not a Constitutional right, after all.
If there is genuine interest in the answer, I’ll answer it. If, as seems likely, it’s just a hook upon which to hang your dissatisfaction with the world of defense lawyers, then I’ll save myself some time.
If you dont mind me asking WHERE? I have spent days and all I can find are sites that for $20-$40 will do it for me.
The entire appellate calendar for Texas:
http://www.info.courts.state.tx.us/appindex/appindex.exe
Just enter search terms.
By the way…
It was remiss of me not to point out that, although I didn’t know the exact details of the sentences in this case, some concerns of Constitutional dimension arise when a defendant wins an appeal, is convicted at retrial, and receives a harsher sentence the second time around.
It’s a well–known principle that defendants cannot be penalized for exercising their right to appeal. To punish a person because he has done what the law plainly allows him to do is a due process violation.
In order to insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions.
In North Carolina v. Pearce, the Supreme Court said that when a defendant is sentenced to a longer term after retrial, the reasons for the greater sentencemust be laid out in detail. They must be based on objective information about actual, identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.
In other words, the judge imposing a harsher sentence has to have a good reason, and it has to be based on something the defendent did after the original sentencing.
I’m a little unclear here. Are you referring to conduct by the defendant which occurs following the first sentencing or to conduct which preceded the first sentencing but which was discovered following it?
It seems a little unfair to penalize a defendant for conduct which had not yet occurred at the time of the crime for which s/he has been tried. It also seems unfair not to penalize him/her for after-discovered conduct (between trials we learned that he tortured him before the murder, etc.).
Change Your Password, Please and don’t use HTML, as it has been disabled, but you can learn about superscripts here
At sentencing, the total picture may be taken into account. This includes previously unknown information (the PSI was unavailable or incomplete at the first sentencing hearing) or conduct that occurred between the first and the second trials, since a judge is entitled to consider repentence (or lack thereof) in fashioning his sentence. This latter may seem unfair, but perhaps this makes it clearer: the jury announces “guilty” and the accused stands up and says, “Yeah, I did it, you m-f-ers, and I’m not sorry either. And I swear I’m going to get you, judge, and you, prosecutor, so you better watch your backs!”
This is, of course. conduct that happens after the original crime. And the judge is certainly entitled to treat this defendent differently than one who sincerely says, “Your Honor, I apologize, and I realize how wrong I was. And I hope your sentence includes restitution, but even if it doesn’t, I will personally pay back every cent I took, no matter what.”
I should have noted the host of decisions subsequent to Pearce that refined how the presumption of vindictiveness may be rebutted. Basically, though, if a judge discovers the original sentence was based on inaccurate or incomplete information, he may impose a harsher sentence. Under Pearce, he’s created the presumption of vindictiveness, but he may rebut that presumption by showing, objectively, what information caused him to change the sentence, and how it was wholly unrelated to the successful appeal.
If a judge bases his harsher sentence on conduct occurring after the first trial and sentence, the presumption does not arise.
Hope that clears it up!
He may have got a third strike on some probation violation. Thus, life.
There is a video out right now with the same name, Double Jeopardy, worth seeing, it has a nother take on this.
I don’t know the specific case, but my understanding is it is derived from the Sixth Amendment’s guarantee of the assistance of counsel in all criminal matters. Effective counsel can’t be rendered if the attorney for the defendant may be compelled to reveal information given to him or her by the defendant.