Justice system? Legal system? Which is it?

[lurkernomore]

Inspired by some of the replies in ** Hamlet’s ** thread.

http://boards.straightdope.com/sdmb/showthread.php?t=235313

@RexDart

Myself, I plan to join the Public Defender’s Office here in Missouri when I graduate, so I would have the privilege of being a pure advocate. I’d have to get used to losing alot, but I hope to put the prosecutors through their paces, make sure that for any defendant (regardless of what people might think of him or her), the prosecutor has to jump through the right hoops. I’ll use every technique I’m allowed to use in my client’s interests, because that’s what an advocate is. And I like the moral position of the defense attorney. Better a thousand guilty men go free than to jail one innocent man.

I’d like to pose a hypothetical. This is inspired largely by Rex’s post, but I’d like to see whomever is interested voice their opinion. I am not trying to cast any aspersions on Rex’s character, just used his post for the baseline.

You have a man who is accused of beating his live-in girlfriend. He has been convicted of this twice in the past, been in alcohol rehab 3 times. He has admitted to you, in privilege, that he got drunk and did it. You also know he told the arresting officer, who did not see the actual attack. Both of them have told you as much. He claims he will not do it again, but you know his record, and the chance for recidivism. He's said this before. You've seen his bad temper manifested at times in your presence. He marries GF, so she cannot be forced to testify against him. She loves him despite the abuse. She's said he did it, but refuses to testify. You discover the cop, a well-thought of veteran you know is honest, did not read your client his rights until after he blurted it out. The confession can be thrown. No witnesses, little physical evidence. You know your client knew his rights, it isn't his first offense, and he is no dummy, just a bully and a drunk. He was so drunk he thought he WAS read his rights. The cop did everything in good faith, the drunk just talked too fast. 

Do you use this to get your client off, and, if so, are you serving your client instead of justice? You KNOW he did it. Would this be a moral position?

Would the extent of her injuries be a factor? (black eye, get him off, broken jaw, jail him?)

FTR, I know there are bad DAs, cops, etc, too. I had a relative who was an ADA convicted of witness tampering, bribery, etc, including one instance where a “confidential informant” had a shotgun placed in their mouth to intimidate him. He was photographed in the papers doing his perp walk, disbarred, and deservedly placed in the Gray Bar Hilton for a while. Never did like him much. A cop in one of the more prominent NYPD corruption scandals grew up across the street from me (and him I knew well and did like). He got immunity for testimony, IIRC. He was dirty too.

So it’s both sides. I do realize the legal system needs both sides. Just sometimes I find it hard to call it a justice system.

Perhaps this should be in IMHO, but I thought I’d keep it near the original post, so shitfuckasshole.

[zoltar7]

IANAL, but if the guy blurts out a confession without questioning from the officer, isn’t that admissable under some kind of spontaneous utterance Miranda exception?

But given the assumptions stated, yes, of course I’d do everything I could to keep his statements his statements out of evidence.

The extent of her injuries would not matter. Not even if she were dead.

[lurkernomore]

Ah, but if you knowingly allow get someone who you KNOW is guilty off, doesn’t that mean it is not justice, just a legal system?

[Frank]

Oh dear, that’s all I needed: more attention drawn to that thread.

Given your setup, and without picking at it*, I’d call it a legal system. Both sides are bound to press their case to the best of their abilities, and bound to stay within the rules. A defense lawyer who was not willing to get his client off with the glaring holes in the case you describe should withdraw. Just as, I suppose, that a prosecutor who felt the defendant was innocent should withdraw.

The system’s goal is justice; that is not always the result.

*One of the items I’d pick at, though IANAL, is that in Colorado marital privilege does not hold in domestic violence cases.

[lurkernomore]

@This Year's Model

A defense lawyer who was not willing to get his client off with the glaring holes in the case you describe should withdraw. Just as, I suppose, that a prosecutor who felt the defendant was innocent should withdraw.

The system’s goal is justice; that is not always the result.

*One of the items I’d pick at, though IANAL, is that in Colorado marital privilege does not hold in domestic violence cases.

Then should a defense lawyer who knows his client is guilty recuse himself? And a prosecutor who is convinced the accused is innocent drop the charges or recuse herself and recommend to whomever brings charges that they be dropped?

And I think marital privilege varies from state to state. But we can make it a liquor store holdup if you wish, and she was there.

[Polycarp]

@This Year's Model

Oh dear, that’s all I needed: more attention drawn to that thread.

Given your setup, and without picking at it*, I’d call it a legal system. Both sides are bound to press their case to the best of their abilities, and bound to stay within the rules. A defense lawyer who was not willing to get his client off with the glaring holes in the case you describe should withdraw.

Good answer, with a minor nitpick that I’ve set off below:

Just as, I suppose, that a prosecutor who felt the defendant was innocent should withdraw.

To the contrary: the role of the prosecutor is to see justice done, ordinarily by bringing to trial (or a guilty plea) those persons whom he believes to be guilty of crimes and against whom he has a “saleable” case.

If a prosecutor becomes convinced of the innocence of someone charged with a crime, he has the right, and I believe the ethical duty, to move that charges be dismissed in the interest of justice.

Likewise, if someone is technically guilty of an offense within the wording of the law but a prosecution would result in a miscarriage of justice in his opinion, he should likewise make that motion.

The system’s goal is justice; that is not always the result.

Worth repeating.

*One of the items I’d pick at, though IANAL, is that in Colorado marital privilege does not hold in domestic violence cases.

Good point – and I believe there are quite a few states where marital privilege no longer holds in any, or at least in most, circumstances.

[RexDart]

The ethical obligation of a defense attorney, as outlined in the Model Rules of Professional Conduct, is to be an advocate. The obligation of the prosecutor is to seek “justice”.

So a defense attorney that “knows” his client is guilty nevertheless must try his best to achieve the best possible outcome for that client, and the client is the one who determines the objectives of the representation. If the client wants treatment, you can try to get it for him. If he wants acquittal, you gotta go for it the best you can. In some situations, you can withdraw. The only thing you cannot do is put the client on the stand if you know he plans to perjure himself, and to resolve that conflict there are a few (pretty poor, in my opinion) alternatives that I won’t go into here, such as narrative testimony.

The prosecutor who believes a defendant is innocent is obligated to seek the dismissal of the charges.

This is the way the system is set up. And I think it works.

There are alot of procedural hurdles the prosecutor has to get over, alot of hoops to jump through. The role of the defense attorney is to be the advocate of the accused, to make the prosecutor be as dilligent in following procedure as he can be. Occasionally, this may lead to dismissal of charges on what laypersons consider “technicalities”.

If a factually guilty man walks free because a prosecutor or the police failed to follow the procedures set in place to protect the rights of the accused, to preserve our civil liberties, then that serves to make the prosecutor and the police more dilligent in respecting those rights and liberties in the future. Thus, the legal system serves the ultimate interests of justice by allowing these things to occur, because it makes the worst possible injustice a less likely outcome: the imprisoning of an innocent man.

As a defense attorney, I would be a hired gun. A pure advocate. I believe my role will serve the interests of justice in the long run, and often in the short term as well. In your hypothetical, you make it such that recidivism is almost guaranteed, but that will not be always the case. A person’s past does not define his future. Some of these indigent defendants are probably people who had a bum lot in life, and they’ve never had anyone who was willing to stick up for them before. I’ll be that guy. Don’t underestimate the power that could have in changing a man’s future.

To turn against that person, to rat him out if he confesses his guilt to you, would be a severe breach of trust. I cannot control what my client might do if I acquit him, so I am not morally responsible for it. I can certainly control my own ethical conduct, and lies and betrayals are not part of the way I want to live, and not acceptable conduct for a lawyer under the adopted ethical standards of the profession.

The adversarial justice system is not the only theoretical model, but it seems to be a good one in my opinion. I’d be proud to draw a check from that system for providing my services.

[Cervaise]

Personally, I think “legal” vs. “justice” as adjectives to describe a judicial model is a false dichotomy. They refer to two different concepts.

“Justice” is abstract. Perfect justice will never, ever be achieved. It can be pursued, but it is an impossible goal.

“Legal” refers to process. A carefully designed legal system is intended to get as close to the abstract concept of justice in as many individual proceedings as possible, and more than the alternative systems. It will occasionally fail, but less often than the alternatives.

Just my take.

[chique]

In my own perfect little utopia the defense and prosecution would broker a deal with the courts which would put the defendent (and probably the victim as well) into a substance abuse program as well as a period* of joint and single counseling. Never mind some anger management classes.

*“period” as determined by the court and mental health officials. Or until she finally dumps the jerk, depending.

[county]

Do you use this to get your client off, and, if so, are you serving your client instead of justice? You KNOW he did it. Would this be a moral position?

Would the extent of her injuries be a factor? (black eye, get him off, broken jaw, jail him?)

It depends. If you use it to get him off then IMO you are serving your client, not justice. It would be a moral position to let him be found guilty, an ethical position to get him off.

Extent of her injuries might be a factor. Perhaps size of her boobs also.

[Humble_Servant]

@Cervaise

Personally, I think “legal” vs. “justice” as adjectives to describe a judicial model is a false dichotomy. They refer to two different concepts.

“Justice” is abstract. Perfect justice will never, ever be achieved. It can be pursued, but it is an impossible goal.

“Legal” refers to process. A carefully designed legal system is intended to get as close to the abstract concept of justice in as many individual proceedings as possible, and more than the alternative systems. It will occasionally fail, but less often than the alternatives.

I agree with this.

Here are a couple of famous literary takes on the law/justice:

from The Merchant of Venice

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

from A Man for All Seasons

Daughter: Father, that man’s bad!

More:  There's no law against that! 

Roper:  There is, God's law! 

More:  Then let God arrest him! 

Wife:  While you talk he's gone! 

More:  And go he should, if he were the Devil himself, until he broke the law! 

Roper:  So, now you give the Devil the benefit of law! 

More:  Yes! What would you do? Cut a great road through the law to get after the Devil? 

Roper:  Yes, I'd cut down every law in England to do that! 

More:  Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? 

            This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then? 

            Yes, I'd give the Devil benefit of law, for my own safety's sake!

Hey, Cervaise, how do you like that kind of support?

[Typo_Negative]

IIRC, the cops don’t have to read you the rights anymore.
Or did I misunderstand a news story?

Regardless, the statements to the cop are admissable as an excited utterance. Assuming, of course, that he was not yet in custody and was not yet being questioned.

Also, couldn’t the wife be called to the stand as a hostile witness? Granted, I don’t think that would do the prosecutor’s case much good, but marital priviledge would not apply here.

[bannerrefugee]

@county

Do you use this to get your client off, and, if so, are you serving your client instead of justice? You KNOW he did it. Would this be a moral position?

Would the extent of her injuries be a factor? (black eye, get him off, broken jaw, jail him?)

It depends. If you use it to get him off then IMO you are serving your client, not justice. It would be a moral position to let him be found guilty, an ethical position to get him off.

Extent of her injuries might be a factor. Perhaps size of her boobs also.

Yeah the size of her Boobs + whether or not she got in front of my car when county was in a hurry!!

[pravnik]

Well, to begin with, the confession in the OP wouldn’t be thrown out, because he blurted it out at the scene and it wasn’t the product of a custodial interrogation(yes, Mirandizing is still necessary in custodial interrogation). Even if it were thrown out, all that means is that the confession can’t be used, and there’s still plenty of evidence to convict him…wife’s injuries, probably cuts on his knuckles, her testimony, etc. etc. The spousal immunity privilege wouldn’t apply: for one, the privilege doesn’t apply to crimes “destructive of the family unit”, like spousal or child abuse, and two, usually the witness-spouse is the holder of the privilege, not the defendant spouse.

I know what you’re getting at, though. Can a defense attorney live with representing a despicable sonofabitch? My dad, also an attorney, has a saying about this: “some you hope you lose”, but yes, even despicable sons of bitches deserve effective representation. I try to think of it not so much as trying to get a guilty client off, but more in terms of putting the prosecution to it’s burden of proof. If this person is going to be punished for a crime, then let it be because the prosecution was able to convince a jury he or she was guilty of that crime beyond a reasonable doubt in the face of all evidence to the contrary, and without using any illegally obtained evidence. Cervaise put it well; justice is the ideal concept; the legal system is the vehicle we use to try to obtain that ideal.

Incidentally, the number of defendants you know for a fact to be guilty as hell is probably much lower than you’d think. Much more common is the defendant that you think is probably guilty as hell, and the real problem is trying to sell his BS story with a straight face.

[Mtgman]

@RexDart

In your hypothetical, you make it such that recidivism is almost guaranteed, but that will not be always the case. A person’s past does not define his future. Some of these indigent defendants are probably people who had a bum lot in life, and they’ve never had anyone who was willing to stick up for them before. I’ll be that guy. Don’t underestimate the power that could have in changing a man’s future.

It should be noted that many, many crimes are crimes of opportunity. See a car with a window rolled down and a wad of bankrolls in the floorboard? Ten seconds later you could have tons of money. A moment of weakness could cost you several years of your life in jail. If you are caught and the money is returned to the proper owner then the actual effect of the crime is reduced to emotional damages. The feeling of security of the person you stole from and the security our society is supposed to try to protect for each of its citizens has been shattered. Penance needs to be done for this violation of the social contract. Myself, I tend to feel that the arrest and trial are probably enough to dissuade that particular perpetrator not to do such a thing again. Crimes of impulse, crimes of opportunity, crimes of passion. These things are all one-shot. If a public defender gets someone who committed one of these types of with something akin to a slap on the wrist, this does not mean an injustice has occurred. Sometimes a slap on the wrist teaches as well as a burned hand. These “criminals” can go back to being productive members of society instead of entering the world of a convicted felon and the downward spiral which often accompanies this shift.

Enjoy,
Steven