How do lawyers do a good job if they are defending someone who is obviously guilty? How do they square it away with their conscience?
I’m not talking about somebody like O.J. Simpson, for whom there was a finite chance that he was innocent (modern computers can represent this probability using double-precision arithmetic). No, I’m talking about some beast who was caught with video tape of him doing [insert your worst nightmare here].
Those of you who watch “Law & Order” would know that the first thing the lawyer would do would be to try to find some way to have that evidence excluded. How could somebody DO that!?
I’ve long wondered about this. The ONLY thing I can think of is this: the lawyer reasons, “People are mortal, but the law goes on forever. If I set this person free, the law will have to adjust to deal with it, and I’ll have made a contribution to the future.”
That’s a bit “head in the clouds”, though, and I can’t imagine it motivating all lawyers.
By the way, I’m looking for a serious answer – please limit yourself to ONE lawyer joke per post!
OK… one lawyer joke: What happens if a lawyer takes Viagra? He gets taller!!
Thank you, I’ll be here all week…
Seriously, tho; I imagine that the situation you describe happens very rarely to a lawyer, and when it does the lawyer in question probably just does his/her job to the best of his/her abilities while trying to keep the larger picture in mind. After all, isn’t it better to take the risk that, on rare occasions, someone might get away with a heinous crime if the alternative is a justice system so tyrannical that innocent people are often convicted?
As much as it sucks that criminals might get off, I like this better than the other possibilities (keeping in mind that no one near and dear to me has ever gotten murdered, etc.)
You’re missing the point, I’m afraid. I’m not talking about the problem in general but about specific instances. If a lawyer (and everybody including the judge’s dog) knows the guy is guilty, and the lawyer finds a technicality that lets the guy get off, will the lawyer “do the right thing” and deliberately take a dive, allowing the beast to be jailed?
Not if the lawyer retains a shred of self-respect and reverence for due process.
It has been pointed out by many others, in many other threads, that there are no “technicalities” – just rights that we don’t happen to need at the moment. No doubt police and prosecutors are, generally speaking, good, law-abiding folk; but, by the same token, they are merely human, and a temptation that they can violate the common rights of mankind ought not to be put in their paths.
Legal regimes in which the local baron (commissar, priest, etc.) has said, “Trust me – I won’t bugger you just because you’re bent over with your pants down around your ankles” have been tried. They have quickly degenerated into a Hell on earth.
In answer to your larger question, as long as there is a colorable, non-frivolous argument that can be made on behalf of the client, the lawyer is duty-bound to make it. The language varies from state to state, but Lawyer’s Codes of Professional Responsibility (check your oxymoron jokes at the door) generally state that the lawyer is obligated to represent his client zealously within the bounds of the law. “Taking a dive” is a breach of the lawyer’s ethical duties, and can result in disciplinary penalties, including disbarment.
If the police have a videotape of the client clearly committing the crime, a defense attorney will attempt to determine whether the videotape was obtained legally, whether it is admissible at trial under the rules of evidence, and so on. If the police have violated the defendant’s rights in any way, it is incumbent on the lawyer to bring that point out and to seek exclusion of he videotape from a trial, whether the lawyer believes the client is guilty or not.
In answer to “how could a lawyer defend someone they know is guilty,” remember that a defense lawyer is there to protect “the process” just as much as to protect the client. As Akatsukami says, there’s no such thing as a “technicality.” The law has sepcific requirements police must observe because society deems those are necessary to protect citizens against wrongful prosecution by the government. If the police have violated those rights, even for someone “obviously” guilty, “the process” is harmed. As a society, we believe that it is better to let a guilty person go free than it is to allow the system to deteriorate so that innocent people might be imprisoned.
First off, everyone in the US has the right to legal counsel. Hence, ditto what Nurlman said.
A friend used to date a criminal defense lawyer a long time ago. We discussed this, and I believe his take was that if the accused person is unquestionably/admittedly guilty (and I don’t know where the line would be drawn), then his lawyer may suggest that he try to get a plea bargain. After all, a guilty person doesn’t have to throw the book at himself.
One additional factor is that every accused always has the right to force the prosecution to prove its case. Even if the prosecution’s case is very strong, the accused’s rights to the presumption of innocence, and proof beyond a reasonable doubt, mean that it is their right to require the prosecution to prove every element of the case, and let it be subject to whatever attacks the defence can bring.
Another way to look at it is that in systems dedicated to the rule of law, no-one goes to jail simply because a government prosecutor says they’re guilty. The prosecutor must convince an impartial, independent court of the guilt of the accused.
A defence counsel who “takes a dive” is undermining the system that protects all of our liberties.
The lawyer who defends the obviously guilty criminal is doing a great service for all of us. If the criminal is so obviously guilty, the defense has no real fear that his or her client will be released. The greatest chance that the criminal would escape proper punishment would be if it could be shown that his or her defense failed perform their duties dilegently. Certainly there are lawyers who go beyond the call of duty by acting unethically on behalf of their clients, but this is rarely true except in cases where the client is rich enough to make it worth their while.
If there exists a legitimate means to get their client to walk, a lawyer has a responsibility to seek that means. If there is not a legitimate means to do so, then the lawyer’s responsibility is to attempt to minimize the punishment their client recieves, usually via plea bargaining. It’s not the lawyer’s job to determine whether the client is guilty or not; that’s for the judge and/or jury to decide. This is true for all cases. If the lawyer can’t decide whether you’re guilty of that traffic ticket, then he can’t decide if a heinous murderer caught on videotape is guilty, either. Lawyers are mostly scum, admittedly, but they’re necessary scum.
I think it’s important to add that the hypothetical set forth in the OP – the defendant is caught committing a crime on videotape – is really not one that happens in real life. In that situation, I imagine a good defense lawyer would concentrate on getting his client something less than the maximum sentence (i.e., plea-bargaining) instead of wasting his or her time trying to show that the client is innocent when he or she manifestly is not.
In the vast majority of cases, however, the client who is “obviously guilty” is a rare thing. Defense attorneys always keep in mind an axiom that I think the question indicates has been overlooked: every person is innocent until proven guilty in a court of law. As has been said, it is not for the attorney to determine the clients guilt but only to offer him or her the best possible defense. Actually, I think Chronos put it quite well. But then, people called “Chronos” are mostly scum, admittedly, but some of them make good points.
Hmmmn. Most of your thread replies are pretty well thought this one really surprises me as it contradicts my experience. Personally as a divorced father, and professionally in my line of work as a commercial real estate broker, I have dealt with a LOT of lawyers. I have been jerked around and screwed by a few but most were among the more responsible professionals I’ve known.
Let’s put it this way, I’ve dealt with lots of lawyers and lots of medical doctors in business negotiations, and I think I would rather have a lawyer hold my wallet than a doctor. At least a lawyer will let you know he’s going to beat you to death at the outset of bargaining, a doctor will say one thing then do another (ie lie) then be “real sorry things had to happen this way”.
Lawyer here, and I have to say I’ve always found this troubling myself. (Hence, I don’t handle criminal cases.)
I know all the standard textbook rationalizations. Everyone is entitled to legal counsel, it’s not the lawyer’s job to decide guilt or innocence, yadda, yadda, yadda. The fact is that criminal defense lawyers often represent clients who are guilty, and use every means to keep them from being found so.
Anecdote:
Last Friday, a lawyer friend of mine came up to me with a big grin plastered across his face, absolutely exhuberant. I greeted him, and he told me that he had just gotten a hung jury in a two week trial of his client, who was an accused rapist. “The guy is as guilty as sin!” this lawyer tells me, still grinning, “And the jury didn’t convict!”
I had no idea how to respond to that. “Congratulations” didnt seem right, so I just said “It sounds like you did a good job for your client.”
Now a hung jury isn’t the end of the story, of course. The guy can be re-tried. But this lawyer was obviously capable of convincing at least some jurors of his client’s innocence. Maybe next time he convinces enough jurors to free the guy, and a rapist winds up back on the street. Hooray! :rolleyes:
I couldn’t sleep at night doing that kind of work.
Pardon me, Jodi, but that’s a bit glib. Suppose I, the defense lawyer, have evidence that establishes beyond all doubt that my client is guilty. The prosecutor, on the other hand, may not have this information, and may have a very weak case, based solely on circumstantial evidence.
Is my client “innocent” because he hasn’t been (and possibly can’t be) proven guilty? Maybe in the eyes of the law, but as an objective matter, he is hardly innocent.
My own view is that there are some circumstances which might place upon a lawyer a higher duty than any code of legal ethics. If I know I’m representing a serial killer, and I have the evidence to prove it, what should I do? What if I know that without my evidence the prosecutor has a losing case? Should I keep the evidence under my hat, and help the killer return to the street? Or should I say “Disbarment be damned!” and turn over the evidence? How would you call that one?
There was a case here in Canada where this situation did come up.
Two sickos were on trial for the kidnapping, rape, torture and murder of several teen-aged girls. The lawer for one of them had in his possession videotape of the acts, showing both of the accused committing the crimes, but failed to disclose it to the prosecution. His client (Karla Homulka) ended up getting a plea-bargained slap in the wrist for testifying against her husband. (Paul Bernardo)
Spoke: Thank you for cutting through the sermons and getting to the heart of the matter.
I can’t help but wonder what that lawyer you mentioned would think if his daughter was raped by the man he knew was a rapist.
Previously, I was thinking along the lines that a lawyer, knowing that his client is a beast, might “forget to dot his I’s and cross his T’s” – in other words, doing a good job of defense, but not a great one. However, from what you said, it appears that some lawyers consider that victory is more important than anything.
How did that fellow get that case? Did he accept it or was he told to do it? If the former, could he not have simply refused? Is possible for a suspect to be refused by a whole bunch of lawyers who wouldn’t touch him with a ten foot pole? Or would they be disciplined for doing that? (I honestly don’t know how that kind of thing works, never having been arrested for anything.)
Spoke-, I’m pretty sure that the evidence would be rendered inadmissable if you did this. You’d be removing any chance that the prosecutor might have had to secure a conviction.
So, not a good idea.
Timothy Campbell said:
This displays a gross ignorance of what other people said in this thread. Lawyers defend scum because otherwise the system collapses. Read the posts by jti, cornflakes, Nurlman, Atkatsumi, and many others.
The same rights that force a lawyer to defend a rapist protect you from an overzealous government. Show some respect.
You really have to wonder that? Or is it a transparent rhetorical device to make people react viscerally instead of logically?
I pretty forcefully disagree with this. A criminal defense attorney is placed in an extremely delicate position when he or she is expected to defend a client he or she knows is guilty – not thinks, knows. That is because defense lawyers, like all lawyers, are bound by ethical rules that will say something like this (these are from my jurisdiction, som YMMV):
1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. (Representing to a court that a client you know is guilty is in fact innocent would be a fraud upon the court.)
1.16(a)(1) A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the representation will result in violation of the rules of professional conduct or other law. (Representing to a court that a client you know is guilty is in fact innocent probably violates both the rules of professional conduct and the law.)
1.16(b)(1-3) A lawyer may withdraw from representing a client if withdrawal can been accomplished without material adverse effect on the interest of the client or if: the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; the client has used the lawyer’s services to perpetrate a crime or fraud; the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent[.]
Because of these and other ethical constraints, most criminal defense lawyers I know absolutely do NOT want to know if their client is guilty or innocent; they concern themselves with the question of whether the State or Federal government can prove, beyond a reasonable doubt, that their client is guilty. If they don’t know for sure, they can concentrate on establishing reasonable doubt or poking holes in the prosecution’s case. It cannot be stressed enough that it is not the job of the attorney to decide the client’s guilt – that is the job of the jury. It would be highly inappropriate for an attorney to take it upon him- or herself the job of judging the client before the client even got to court.
Your anecdotal lawyer sounds like a true sleaze, someone who has lost sight of the pursuit of justice in favor of competing with the prosecuting attorneys. That’s unfortunate, but I don’t think it’s indicative of most criminal defense attorneys, who do hard, unpopular work, often for crappy pay – work that is crucial to our system of justice, because without people willing to represent the accused, an adversarial system breaks down. This is not, in my mind, a “rationalization,” but simply the truth.
This is the old “the client gives the lawyer the murder weapon” hypothetical, which I know we covered in Professional Conduct in second-year law. I don’t remember what the answer was, precisely, beyond that the attorney is in an awfully awkward situation. He cannot withold the evidence from the authorities, but he cannot violate the attorney-client privilege by turning it over, but he cannot portray as innocent a client he knows is guilty. I believe the answer is that the attorney must recuse himself but must respect the privilege, though I may be wrong. But as I have said before, the chances are pretty slim that the attorney will have evidence that proves “beyond all doubt” that his client is guilty, which evidence the prosecution somehow does not have. We can move off into hypotheticals if you want, but the fact is that in most cases the defense attorney does not know “beyond all doubt” that his client is guilty – and doesn’t want to know.
You cannot put yourself in the position of pre-judging your client except in those extraordinarily rare cases where you know without a doubt your client is guilty. If there is even an iota of doubt, no matter how slight, you must allow the court to decide guilt because that is its function.
There are no cases that I am aware of in which the code of legal ethics requires me to set aside my own morality. If a person cannot maintain objectivity far enough to refrain from pre-judging his or her own clients, then that person obviously should not be a criminal defense lawyer. But no one is going to make you represent a criminal if you don’t want to – unless you are court-appointed counsel, in which case you can still be recused (and ought to be) if your own beliefs or emotions would prevent you from giving the client an effective defense.
Oh, I don’t know. Really. But the first thing I’d do is submit an inquiry in writing to my Bar Ethics Committee requesting guidance on what I should do. Fortunately, I am not required to “call that one” without talking to someone (probably several someones) on what would be the best way to handle the situation. Certainly I would never submarine my own client out of some misguided sense that I am working for the “higher good” if I violate my duty as an officer of the court and subvert the entire judicial system in order to see he goes to jail.
TC says:
This is absolutely, completely verboten. Once an attorney has agreed to represent a client, he or she has the moral, legal, and ethical duty to give that person the best representation possible. You cannot submarine your clients.
From Spoke’s anecdote, it seems that way, doesn’t it? But in my experience, most lawyers consider effective representation to be the bottom-line requirement of their work – if you can’t do at least that, you shouldn’t do the job. Many lawyers consider the system – under which everyone is entitled to effective representation – to be more important than anything, including the guilt or innocence of any one individual. I personally believe this. “Victory” should have little to do with it.
You’ve touched on the one situation where a lawyer may be required to professionally do something that he or she does not truly believe in. If a person is accused of a felony crime, he or she is entitled to be represented by counsel at trial. If he or she cannot afford counsel, counsel will be appointed. So the judge appoints a lawyer, but the case is an ugly one, the crime horrific, and the lawyer refuses. The judge appoints another lawyer. He refuses as well, and so on. Eventually, the judge will be forced to appoint a lawyer and not allow that lawyer to recuse himself even though he wants to. Why? Because the defendant is constitutionally entitled to counsel; apparently no one will represent him voluntarily; but someone has to do it, so you, unlucky lawyer, will have to do it whether you like it or not.
In reality, this rarely ever happens anymore. Even in rural areas, there are procedures in place by which counsel can be imported from another location to handle the defense if the case is such a “hot” one that no local counsel will agree to handle it. The bottom line is that the judge does not want an involuntary or reluctant counsel handling the defense, because then the defendant can later claim that the representation was ineffective.
If a judge tells you, as a lawyer, to represent someone you feel you cannot in good conscience represent, you have a duty to say so. If the judge says “too bad; you’re appointed counsel,” then you may well risk contempt of court if you refuse the appointment. But the bottom line, for me at least, is that everyone has to do what they have to do to sleep at night, and I’d take a few days in jail for contempt before I would compromise my morals (and my legal duty) by standing to represent someone I do not really feel equipped to defend.
