How does a Lawyer end up defending Scum™

Great Debates
141

[QUOTE=askeptic]
Legal systems are designed because man is fallible we invent laws and rules to approximate justice or create a system that in the end is more just than others.
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Why is it a better approximation of justice to have a system of laws where a murderer or child rapist can go free because the police did not read him his Miranda rights, versus a system of laws where the murderer or child rapist still faces trial, but the policeman who failed to read the Miranda rights is punished (appropriately, as determined by law)?

142

[QUOTE=Polerius]
Why is it a better approximation of justice to have a system of laws where a murderer or child rapist can go free because the police did not read him his Miranda rights, versus a system of laws where the murderer or child rapist still faces trial, but the policeman who failed to read the Miranda rights is punished (appropriately, as determined by law)?
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Sigh. One of the many lawyers will be passing shortly no doubt, to reiterate the point of this entire thread. Still, in the meantime I’ll have a go.

Rights are there to ensure that the process is carried out properly. If it isn’t, you have no way of ensuring that evidence against a person is valid - in the justice sense of the word. Without valid evidence you shouldn’t convict people.

So, if we all went the way of your proposal, it would quite possibly be worth the police/prosecutor infringing some rights because they ‘know’ the person is guilty and taking whatever punishment if they themselves get caught based on the perceived risk. I don’t know about you, but I wouldn’t want to be accused or arrested by someone with that frame of mind.

And that’s the thing isn’t it? The OP makes the assumption of guilt based on the nature of the crime and the perceived level of evidence. The system (both in the UK and the US) is designed to interrogate that evidence and determine reasonable doubt or otherwise. If there’s a failing in that, it isn’t that the accused is allowed a defence.

143

[QUOTE=Martiju]
So, if we all went the way of your proposal, it would quite possibly be worth the police/prosecutor infringing some rights because they ‘know’ the person is guilty and taking whatever punishment if they themselves get caught based on the perceived risk. I don’t know about you, but I wouldn’t want to be accused or arrested by someone with that frame of mind.
[/QUOTE]

Sigh. They won’t be arbitrarily “infringing your rights” and putting you in jail willy-nilly.

If they think you’re a murderous pedophile, but don’t have enough time to get a warrant before you destroy any evidence, they could barge in without a warrant and find the evidence (collected via proper evidence-gathering, minus the warrant)

They might be willing to spend some time in jail or pay a large fine to get this evidence (and their penalty should be the same whether or not they find any evidence), but once collected, the evidence should be used in a trial that proceeds as per normal procedure.

The evidence can be tampered with even if the police have a warrant, so the determination of whether the evidence has been tampered with should be made irrespective of whether it was collected with a warrant or not.

In such a system, do you think policemen would be willing to just barge into random peoples’ homes, given the jail terms and/or large fines they might face?

144

[QUOTE=Polerius]
Sigh. They won’t be arbitrarily “infringing your rights” and putting you in jail willy-nilly.

<snip>

In such a system, do you think policemen would be willing to just barge into random peoples’ homes, given the jail terms and/or large fines they might face?
[/QUOTE]

So what you’re saying in fact, is that there’s no point having rights in the first place as, of course, they won’t be infringed? I’d rather not live in a society like that myself.

The whole argument is based upon the premise that there are scores of murderous felons getting away with things because of ‘technicalities’. I think that’s false myself - and it’s incumbent upon the authorities to make sure that they proceed appropriately to ensure that suspects are apprehended, arrested and charged properly. The scenario you pose doesn’t seem a particularly likely one to me - one where you have evidence that someone is about to go out and murder a child (which of course is far worse than murdering anyone else, but I digress) and you absolutely must get them then and there. I would suggest that if you suspect such a thing is about to happen you already have evidence - a warrant shouldn’t be hard to obtain! If it is, then perhaps the evidence isn’t really there in the first place…!

145

[QUOTE=msmith537]
Well, I consider them “scum of the earth” because I find many of them to be arrogant, insensitive assholes who call you up at innappropriate times to perform ridiculous requests. But most people don’t work with them as closely as I do.
[/quote]

One could cut and paste this comment into any number of posts written by people who service high pressure industries.

146

[QUOTE=Polerius]
<snip>
In such a system, do you think policemen would be willing to just barge into random peoples’ homes, given the jail terms and/or large fines they might face?
[/QUOTE]

Well, there evidently is some nonzero number of people willing to commit crimes despite the jail terms and fines you mention. Some of those who have been described as “scum”, for example.

So yes, I do believe that LE officers would, in some cases, be motivated to commit criminal acts in pursuit of a suspect, especially if they were able to justify said criminal acts to themselves on the grounds that they were furthering their own arbitrary definition of the “greater good”.

147

[QUOTE=Martiju]
Rights are there to ensure that the process is carried out properly. If it isn’t, you have no way of ensuring that evidence against a person is valid - in the justice sense of the word. Without valid evidence you shouldn’t convict people.
[/QUOTE]
I think the concept of a “technicality” is that it does not make the evidence unreliable, which is why people bristle at the concept of evidence being withheld from court because of them. Anyway, don’t juries normally have to weigh the value of evidence? Does the slightest bit of uncertainty in evidence mean the jury must never hear that it exists?

Take the Scottish search warrant example. A technicality would be if the civilian would normally have been listed, and an acceptable addition to the warrant, but an administrator missed a line in translating the list to the warrant, or misspelled his name. The actual case seems more complex than this, but conceptually this is what I think of as a technicality.

There’s a line (maybe a fuzzy one) that separates requiring standard procedures to protect citizens, and requiring perfection every single time you do anything.

148

[QUOTE=mhendo]
I think most people would agree with you about this; even most lawyers.

The problem is that, in these lawyer-bashing threads, the default assumption among the knee-jerks is that they focus only on the cases where lawyers appear to be thwarting justice. They forget that, in every court case (civil or criminal), there are lawyers on both sides of the debate. While these lawyers are fighting for their clients, and not for any esoteric concept like “justice,” we as a society have concluded that justice is, on the whole, best served by a system in which lawyers are advocates for their clients, and in which the two sides are placed in an adversarial position to one another. .
[/QUOTE]

I agree. It’s the high profile case that gets the ink and the picture is further painted with misanthropic editorial color. Public opinion is driven off a concept of justice and what inevitably creates a high profile case is the perception that justice was not served. By default, only the crappy side of the legal system gets mentioned.

[QUOTE=mhendo]
Of course, it’s possible to argue that the adversarial system is not the best system for arriving at a just conclusion. Quite a lot of legal experts make such arguments, and in fact there are legal systems in which the role of lawyers is quite different from their role in the American adversarial system.

You do realize, i assume, that the vast majority of cases, even cases involving “scum,” are not “high profile” cases. The vast majority of defense attorneys work long hours without ever getting their name on the front page of the paper, or their face on CourtTV (now TruTV :rolleyes: ). And while plenty of defense lawyers make a very nice living, there are plenty of others who spend their whole careers as public defenders, working long hours in less-than-ideal conditions for relatively unspectacular pay.
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I don’t disagree with anything you’ve said. I have a fair number friends in the legal profession who fit your description of career public defenders. While there are cases I find appalling in both prosecution and defense I am aware of at least some of the legal processes that take place in court. I’ve gotten an earful of behind the scenes events that would be entertaining if nothing else.

149

[QUOTE=Northern Piper]
Along the lines of Bricker’s example, there was a case here in Canada about 10 years ago where a fellow was picked up by the police and charged with a fairly serious offence. He gave a confession to the crime, and pled guilty at one of his early appearences, without a lawyer.

He had a lawyer for the sentencing phase, since he had a lengthy record, so some argument was needed to determine an appropriate sentence. On reviewing the record, his lawyer discovered that his client had a cast-iron alibi for the offence - he had been serving time in the Stony Mountain federal pen when the offence was committed in another location! The Crown had not picked up on that point - but that is the job of defence counsel, to view the evidence from the accused’s perspective, not that of the Crown.

Turned out the accused had an underlying mental problem, coupled with drug issues, that led him to plead guilty - sort of a “whatever” thing.

His lawyer successfully applied to have the guilty plea set aside, and with the evidence from the penitentiary records, it was clear to the Crown and the court that the confession was meaningless.

The right to counsel isn’t just meant to protect articulate, reasonable people who get along well in life. It’s also to protect the vulnerable, those with serious problems in their lives - the kind of folk that other people just dismiss as “scum”.
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And another one, this from the Children’s Encyclopaedia which I’ve remembered for nearly forty years: Two poachers were apprehended by a gamekeeper, and in the ensuing struggle the gamekeeper was killed. When the poachers were arrested, one of them immediately claimed sole responsibility for the murder, was tried and sentenced to hang. For whatever reason, there was a popular feeling that he was innocent, and various appeals were made to have his sentence quashed, which failed, but it was eventually commuted to penal servitude for life. This was in the days when life meant life, and penal servitude meant the treadmill and the rock-pile.

When he was an old man, and infirm, he was released as an act of clemency, and he learned that his fellow poacher was dead, on hearing which he admitted the truth: that he himself was innocent of the murder, but, having no dependants of his own, had lied for the sake of the guilty man’s wife and child, so that they would not starve.

Whether anyone involved in this sad story would have been better served if the proper process of law had led to the guilty man being convicted is open to question. The confessor may have been perfectly happy at how things turned out, and might have gone contentedly to the gallows, having freely chosen to redeem his criminal career by sacrificing his life for the helpless. But I guess that the trouble with denying defence counsel to scum[sup]TM[/sup] is that it means that sometimes, as it were, you guillotine Sydney Carton.

150

[QUOTE=Princhester]
One could cut and paste this comment into any number of posts written by people who service high pressure industries.
[/QUOTE]

Yes be these are the ones who I service. :smiley:

In reality, I believe people think lawyers are scum because they often see them as opportunists and charlatans who twist the letter of the law for their own personal gains. The classic example being the robber who sues the homeowner after breaking his leg during a robbery.

First of all, the law is nothing but “technicalities”.

Second, do not confuse uncertainty in the evidence with chain of custody. If I have a glass with the defendents partial fingerprint, there may be some uncertainty as to the forensic procedures used to match the fingerprint to the defendent. That point can be argued by experts for the benefit of the jury. If, however, I cannot demonstrate the proper chain of custody for the glass itself, the jury has no way to know if it was found at the crime scene or given to the defendent at the station.

Depending on what country, they are both probably guilty of felony murder anyway, even if only one of them pulled the trigger.

In the grand scheme of things, what does it matter if a couple murders go free compared to sustaining a system of government that is based on belief that people have certain rights that can’t arbitrarily be taken away just because it happens to be convienient?

151

[QUOTE=msmith537]
Depending on what country, they are both probably guilty of felony murder anyway, even if only one of them pulled the trigger.

[/QUOTE]

I don’t have the details - the CE was intended for preadolescents - but it may be that the confessor claimed that only he offered violent resistance to the gamekeeper. (And if, at the time they were apprehended, they were committing nothing worse than trespass, that was not a criminal offence under English law, despite the traditional “Trespassers Will Be Prosecuted” notice.) Whatever. I can only relay the story as I heard it (and the point also occurred to me, tho’ not when I was a child obviously).

152

[QUOTE=msmith537]

Well, I consider them “scum of the earth” because I find many of them to be arrogant, insensitive assholes who call you up at innappropriate times to perform ridiculous requests. But most people don’t work with them as closely as I do.

[/QUOTE]

Arrogant - well I try not to be but I am sure I am at times.
Insensitive - sometimes. It’s tough not to be seen as insensitive when a deadline from a federal court is ticking closer and closer and things need to be done, and done immediately.
Asshole - possible, but that is really not for me to judge.

Yes I have called people at “inappropriate” times to do “ridiculous” requests. But I have never asked them to do anything I am nto doing myself - if I am asking you to work through the night you had better believe I am working through the night too, in the vast majority of situations. And I have never asked a support person to miss a close friends wedding, though I have done the same myself.

It’s a job that has a lot of shitty deadlines, which are often not flexible. That results in crankiness all round. People (and I work with some of them) who expect others to do the impossible, yet leave at 6 pm themselves, are assholes to work with. But being asked to do the ridiculous at inappropriate times is part and parcel of working with litigators. If you don’t like it, well, none of us do. But if it is a big enough deal, I suggest working with other people.

153

Yesterday a client said to me: “I’m not having any fun. Why should I keep coming back here if I don’t have any fun?”

So there you have it.

154

[QUOTE=villa]
Arrogant - well I try not to be but I am sure I am at times.
Insensitive - sometimes. It’s tough not to be seen as insensitive when a deadline from a federal court is ticking closer and closer and things need to be done, and done immediately.
Asshole - possible, but that is really not for me to judge.

Yes I have called people at “inappropriate” times to do “ridiculous” requests. But I have never asked them to do anything I am nto doing myself - if I am asking you to work through the night you had better believe I am working through the night too, in the vast majority of situations. And I have never asked a support person to miss a close friends wedding, though I have done the same myself.

It’s a job that has a lot of shitty deadlines, which are often not flexible. That results in crankiness all round. People (and I work with some of them) who expect others to do the impossible, yet leave at 6 pm themselves, are assholes to work with. But being asked to do the ridiculous at inappropriate times is part and parcel of working with litigators. If you don’t like it, well, none of us do. But if it is a big enough deal, I suggest working with other people.
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Given the huge numbers of delays, continuances, recesses, etc., granted by judges, I simply don’t believe this. Plus, judges work such short hours, that is why these trials go on for months. look at the OJ Simpson trial-stuff that could have been covered in a few hours took weeks-because of constant challeneges, interupptions, and recesses.
I would guess a trial court judge puts in less than 4 hours a day

155

Some deadlines are flexible. Others aren’t. I guess I am wrong that the 10 Day deadline that expires for us on Monday (but fortunately does not include a lot of work) cannot be altered because you say so.

All I am saying is that if I need something done at 4 am, the support service that is available at 4 am is more likely to get the business. I bear no grudges to those who chose not to be available then, but I am less likely to use them, both for the late night stuff, and for work in general.

156

[QUOTE=ralph124c]
I would guess a trial court judge puts in less than 4 hours a day
[/QUOTE]

You’d be wrong.

157

[QUOTE=ralph124c]
look at the OJ Simpson trial-stuff that could have been covered in a few hours took weeks-because of constant challeneges, interupptions, and recesses.
[/QUOTE]
Would you just do away with these processes? Perhaps we could dispense with the courtroom altogether, and just build a gallows at the police station. Would that meet your standards of ruthless efficiency?

158

Related more to the OP, if more regarding how does a lawyer keep defending scum as opposed to how does one end up defending scum.

I interned for a semester with the Public Defender, and ended up doing a lot of work with one of the attorneys who handled a lot of child abuse cases. This guy was not the type of attorney portrayed earlier in this thread as graduating at the bottom of his class and not being able to find another job. Instead, he was pretty high up in his class at Penn, and believed in defending indigent people.

Anyway, one of the first cases I helped out on was a guy who was up for 16 counts of child rape. His sole defense, not believed by the judge/jury apparently, was that he did not start until the children were 14 or so. Quite an introduction for me.

So I asked the attorney how he kept on doing this day, after day, expecting to hear something along the lines of waiting for that classic miscarriage of justice situation to pop up. Instead he answered it just by saying that he finds one little piece of humanity in every client, and focuses on that and tries to ensure that the system treats them fairly and justly.

All credit to the guy. Not only is he one of the best litigators I have ever come across, but he is also doing a job that has to be done for our system to operate, but that I could not do.

159

[QUOTE=Polerius]

In such a system, do you think policemen would be willing to just barge into random peoples’ homes, given the jail terms and/or large fines they might face?
[/QUOTE]

The problem with your idea is not the deterrence factor. Police probably would be more deterred by personal fines than evidence suppression. The problem is that it is entirely unfair to police. We cannot expect police to be lawyers. They will make mistakes–lots of them. If we let them off for mistakes, we will have to distinguish mistakes from “mistakes” and your system will break down.

160

[QUOTE=ralph124c]
Given the huge numbers of delays, continuances, recesses, etc., granted by judges, I simply don’t believe this. Plus, judges work such short hours, that is why these trials go on for months. look at the OJ Simpson trial-stuff that could have been covered in a few hours took weeks-because of constant challeneges, interupptions, and recesses.
I would guess a trial court judge puts in less than 4 hours a day
[/QUOTE]

You are dead wrong. Again

I think the OJ reference has exposed you- is everything you think you know about the legal profession based on what you see on TV?

Because you haven’t been in the ballpark yet.