I’ve always been interested in this subject and have never received a satisfactory answer. I’ve even taken a criminology class in which this was one of the questions explored. Lawyers had a bunch of rationalizations, but when it came right down to it, it seemed that they pretty much just kept themselves in states of voluntary ignorance and denial. As long as my client hasn’t told me straight out that he did it, I really don’t know that he’s guilty, so I can defend him.
Anyway, I’d like to ask about a particular case in which I believed that lawyers acted like scum. I saw this on some TV news magazine show; here are the particulars:
An elderly woman was injured by a malfunctioning automatic door at a casino. She was simply entering the casino, when the door closed on her, knocking her to the ground quite forcefully. She sued the casino. Due to the thousands of security cameras, the casino had a videotape of the incident in question, which showed beyond any reasonable doubt that the doors had indeed malfunctioned, and that the casino was at fault. However, the casino’s lawyers fought for three years (!) to prevent the plaintiff’s lawyers from having access to this tape, which they surely would introduce into evidence once they had possession of it. Obviously, the casino was hoping that this woman would run out of money or patience (or just die) during this protracted legal battle.
Now, would anyone care to defend the actions of the casino’s lawyers on this one? They fought to prevent a relevent and important piece of evidence from being introduced, for no other reason than the fact that it hurt their own case. Furthermore, they almost certainly knew that the law was not on their side, and that all of their legal challenges were nothing more than filibusters designed to discourage the other side.
Personally, I could not live with myself if I had to do this type of stuff for a living. I also can’t imagine that this is the best our legal system can come up with in terms of due process. Three years? For a videotape? C’mon. We should try to find a way that still guarantees individual rights, while not forcing certain people to continually fight on the side of untruth, injustice, and evil.
Sigh. Let me try this a different way. A man is accused of raping a woman. An eye-witnesses will testify to seeing the man drag her out into the bushes. The woman will testify that she was raped. No one wants to defend the accused under these circumstances.
Guilty, or not?
If you said guilty, let me also add that it’s the deep South, the early 19th century, and the accused is black. The witness, the woman, the attorneys, the judge, and the jury are white. The witness is really the woman’s father, and he has been abusing her. The witness is also a racist KKK-member with a grudge against the accused.
Guilty, or not?
For Pete’s sake, you guys, go re-read To Kill A Mockingbird. It’s not as easy to tell an innocent person from a guilty person as you all seem to think. I mean, why don’t we just go back to dunking people in ponds? If they float, they’re guilty, but if they sink, they’re dead, right? All of these complaints are premised on some duty or even ability for an individual to tell a guilty person from an innocent one by divination. But that doesn’t happen, which is why we have trials and evidence. And one person can often reach the wrong conclusion, which is why we have juries. I must say, however, that I am made more than a little impatient by people repeatedly explaining that it is devotion to the system, and belief in the system, that dictates strict observation of procedural safeguards – even if a guilty man occasionally goes free – and having those deeply-felt explanations dismissed as “a bunch of rationalizations.” Just because you do not agree with me does not mean I am “rationalizing” in reaching my position. Unless by that you mean “thinking rationally,” in which case, please try to join me. And, by the way, ignorance is not synonymous with denial. If I choose to refrain from reaching a conclusion – any conclusion – about my client’s guilt or innocence, that does not mean I am “denying” his guilt. It means I am quite properly leaving the determination of his guilt to the jury – the body our system intended to make that decision.
Under the rationales I’m reading here, God help you if you’re innocent but caught in a really bad situation (Ashley Judd in Double Jeopardy, anyone?), because no attorney will ever help you. Is that what you people really want? The determination of guilt or innocence to devolve into the hands of the lawyers? Heck, I’m a lawyer and I don’t want that.
Now, to Opus’s hypothetical:
Of course I wouldn’t defend them. But I can tell you how this would go with me:
Serve discovery upon the casino, asking for the videotape, which, this being a casino, I would assume they have.
Wait. They refuse to cough it up.
Write letter demanding tape. Remind counsel that any material leading to the relevant evidence is discoverable, and the tape in question is certainly relevant. They refuse.
Move the Court to compel production of the tape. Move the Court to sanction opposing counsel for unreasonably refusing to provide it.
Under the facts as provided in the hypothetical, win both motions. Buy donuts for my office, and move forward with the case.
As usual with hypotheticals, I have more questions than answers. On what possible grounds could the casino’s lawyers refuse to disclose the tape? Why in the world would a discovery issue take three years to resolve? The only reason I can think of for it taking so long would be the inclusion of appeals to an intermediate and supreme court. But if we’re talking multiple appeals, then we’re talking an issue that’s probably a whole lot more complex than the hypothetical indicated. But whatever.
As usual, Jodi has expressed my thoughts so clearly that I have little to say.
The only thing I would add is some corrections to what Groundskeeper Willie said about the Bernardo case.
First, the videos in question apparently showed both Bernardo and his wife, Homolka, sexually abusing and torturing the two girls in question. It did not show either one of them killing either girl.
Second, the videos were not in the possession of Homolka’s lawyer. Bernardo’s lawyer had them.
Third, I myself wouldn’t call a 12 year sentence for manslaughter a slap on the wrist.
Fourth, Bernardo’s lawyer was tried later for obstruction of justice, for not turning the tapes over to the Crown prosecutor or police. The trial judge acquitted him, on the basis that this is an area of uncertain legal ethics, but in the process made it clear that he thought the lawyer had a duty to turn over. There is now a precedent that says that in Canada, there is a duty to turn over.
For anyone who’s interested, here’s the decision of the Ontario Court of Appeal, denying Bernardo’s appeal from conviction of first degree murder: R. v. Bernardo. He is seeking leave to appeal to the Supreme Court of Canada. A decision on the leave application could come at any time, as the matter has been submitted to a leave panel of the Court.
I’ve not been able to find a link to the decision in the trial of his lawyer - will keep looking. One thing is clear - this case will provide a lot of raw material for many classes on legal ethics.
Oh, I forgot to add - the reason I mention that that the tapes do not show the murders is not meant to suggest this couple has been maligned. Rather, even here, there was scope for uncertainty, as each pointed the finger at the other and said “he/she did the killing” - which is why we have courts to try the case.
I’ve heard that hypothetical question many times. “How can a lawyer defend someone he KNOWS to be guilty?” A question always pops into mind. “How would he KNOW?”
Did his client confess to him? Some ‘confessions’ are not truthful. He had damning physical evidence in his possesion? Many states(including California) have reciprocal discovery rules, requiring the lawyer to turn over the evidence over to the state. The client is scum-sucking sleaze bag who is sooooo obviously guilty? Well, that’s an assumption of course. A lawyer never really knows what happened.
On A&E, they did a profile on a rape case in the mid-Eighties. Two women were raped on seperate occasions. Both had been abducted from a mall parking lot. The police arrested a landscaper who worked next to the mall. He was a suspicious looking guy with a criminal record and no alibi. Both women positively identified the man as the rapist. He was convicted. He served nearly ten years before DNA evidence cleared him, proving he was not guilty.
The A&E show was on how often eye-witness identification(the most compelling of evidence) is mistaken. There have a lot of people who were obviously guilty who later turn out to be innocent. Thank God they had lawyers who kept trying to prove it.
Jodi, with respct to your reference to the code of ethics. I am not sure that you would be committing a fraud upon the court. You are not required to present your client as innocent. Requiring the state to prove him guilty is not at all the same thing.
Just watched TKAM last week. Good flick. But I suspect it stands at some distance from today’s criminal law practice. Could you believe the prosecutor sat there in court with his leg over the arm of his chair, chewing on his pen?! Now THAT was unrealistic! And Atticus tossed the glass to Tom and questioned him about his arm before he was sworn in, and then relied heaviuly on it in his summation. Always enjoy seeing Robert Duvall as Boo. But I digress.
My suspicion is that many defendants are guilty of SOMETHING, and that the machinations discussed here concern the ultimate charge they are convicted of, not whether they are acquitted.
And I question your dismissal of Opus’ civil law situation. I think there is no question that one thing a good lawyer can do in most civil litigation is delay things and cost his opponent money. And IME attorneys for certain corporations have been known to conduct themselves in a manner designed to make it difficult for the opponent to get what they need, and to make litigation excessively expensive for them. In very many ways, a corporate lawyer is similarly situated to any other corporate employee who needs his salary. His boss may ask him to do things that are kind of sleazy, but arguably within the law. I suggest many folk check their ethics in favor of their desire for a continued paycheck. At least it is a matter of degree. Are they asking me to do something kinda slimy, or really slimy. And lawyers always have the excuse, “Hey, I might be being an asshole, but the other side is certainly entitled to hire the biggest asshole they can get as well. Oh, they can’t afford it. Aww, that’s too bad.”
The code of ethics is a wonderful thing. Of course, when you’re waiting for next month’s rent check to walk through the door. And when you practice insurance defense, and your big client wants to refuse a claim …
Yes, there are a lot of good lawyers. And, there are a lot of whores. Wouldn’t hazard a guess right now as to percentages.
Disclaimer, both I and Ms. D are lawyers, she used to be in-house counsel for a large corp and now teaches business law. I work for a large government agency.
This illustrates exactly why everyone needs a lawyer who is going to defend them to the best of their ability.
DNA testing in recent years has shown that convictions which everyone held to be sure things were wrong. Your suspicion is just that, a guess. We have courts of law to try these things, not people’s hunches and guesses. And the courts only work if the defendent’s lawyer is really trying to win the case.
Certainly, reducing the charge or the sentence is part of the lawyers job, but they should always have the client’s interests at heart.
Sorry if I didn’t phrase that precisely enough for you. Probably won’t do much better here. I’m certainly not suggesting the cops should plant drugs on the guys loitering on the corner because the undoubtedly have done something wrong at some time, they just haven’t been caught.
What I meant was, if your client admits to you that he killed the victim, that doesn’t mean he is guilty of what he has been charged with. And, while “guilty man gets off scot free” makes good TV fodder, in reality I suspect (guess/hunch/imagine) that much evidence is excluded, and technicalities come to bear, to determine whether an admitted and known killer, is convicted of manslaughter, first degree murder, or something in between. Remember, the OP posed a rather extreme situation, where it is pretty darn clear the accused did it. Sure, innocent folk get railroaded. But IMO that exceeds the OP. I suspect the issue in the OP would be whether the guy gets fried, imprisoned w/o parole, imprisoned for a period of years, sent to the looney bin, etc, not whether he were immediately set free to rape and kill again.
And in the present system, everyone gets an attorney who will defend them to the best of his/her ability. Just hope you don’t have to plumb the depths of the “ability” of an overworked, underpaid, PD.
For the record, I have known many (again, I won’t hazard a guess at percentage) attorneys working in both crim and civ, both prosecution/plaintiff’s and defense, who focus on success rates and numbers, instead of morals. If you are doing criminal defense or prosecution, your caseload may be so overwhelming, that individual cases cease to involve individuals, but become statistics.
My favorite story of this type was a rather high profile lawyer who signed up a mom in a wrongful death case. His gleeful quote made out loud in the office was, “How much is a dead nigger baby worth? Let’s file for $1 mill. That will get our name in the papers.” And I might add, the guy continues to be quite successful and every indication is that he is well respected in his profession. Yeah, there may not be that many rotten apples, but the ones there are sure do stink.
DINSDALE, I have never said, and do not believe, that all lawyers are selfless saints. I am well-aware that there are crappy, dishonest, unethical lawyers who are willing to do anything for a buck – just like there are crappy, dishonest, unethical doctors, plumbers, salesclerks, and construction workers. I refuse, however, to have my entire profession so characterized. It may be okay with you for people to think that the honest lawyer is the exception, and that may truly (and sadly) be your experience, but it is not okay with me because it is not mine. The question presented here is not whether bad lawyers exist, but how the run-of-the-mill defense attorney can sleep at night when he or she knows his client is guilty. The answers (again) are (a) in the vast majority of cases, the attorney does not know for a fact that his client is guilty and (b) our adversarial system is dependent on effective counsel for all – even evil people – so a person who defended an evil person does a necessary but thankless job. Do you disagree with this?
Well, I’ve been there, folks, on more than one occasion. One thing a public defender rarely lacks for is a parade of pretty-clearly guilty clients.
Jodi, it’s true that the Code requires a duty of candor towards the tribunal. But even if you know your guy is guilty, you are perfectly free to argue to the fact-finder that a reasonable inference from the facts is innocence. You cannot, of course, lie. But that’s not a problem, since you, as an advocate, are not testifying. Your opening tells the fact-finder what your evidence will be, your direct and cross-examinations reveal facts from witnesses, and your closing argues that from these facts, certain inferences may be drawn.
It is highly improper for a lawyer to inject his personal belief into argument, regardless of what it is. It is of no moment that you believe your client innocent or guilty. You may only refer to the evidence, and what it says.
Tim, there is no question that it’s a daunting task to juggle your personal sense of “doing the right thing” with your ethical obligations towards a client. But in the end, you work every legal method to represent your client’s best interest because that’s what you agreed to do, as an officer of the court. There may well be times that the results are revolting. But it’s a slippery slope otherwise: if lawyers are permitted to judge their clients themselves, I may well hold out for only the truly guilty ones. But what of my buddy, down the hall, who applies a slightly less stringent standard?
It’s not pretty sometimes, I admit. But it’s absolutely necessary.
Actually, Rick, I disagree with this. If you know your guy is guilty, you can argue that the prosecution did not prove its case, but a wise lawyer would not go so far as to infer innocence from that – or encourage the jury to do so. That may seem like a small distinction, but in my mind it is not – it is the difference between “innocent” and “not proven guilty.”
An attorney, as an officer of the court, may not lie to the court nor allow his client to do so. The fact that the attorney’s assertions are not “testimony” in the case does not change that.
Not for me. My opening tells the fact-finder why the evidence is insufficient, my direct and cross pokes holes in the evidence, and my closing argues that guilt has not been proven beyond a reasonable doubt. If, that is, I know the client is guilty. If I don’t know, I may urge the jury to infer innocence, but not if I personally know that inference is untrue. I personally find the encouragement of a conclusion I know is wrong (ie, innocence) to be incompatible with my duty to foster the truth as an officer of the court. So I would concentrate on reaching “not guilty” in the sense of “not proven,” as I do not believe pointing out that the prosecution has failed to make its case in anyway conflicts with that duty. Again, you may consider this to be a fine line, but it is an important distinction for me personally.
Jodi, we may be splittng hairs - or perhaps I could have phrased my half of the hair better.
When I said, “…perfectly free to argue to the fact-finder that a reasonable inference from the facts is innocence,” I guess I was picturing not so much innocence of the accused of the crime charged, but how the facts could easily support either of two reasonable inferences.
For example, “…and the Commonwealth has not presented one witness that saw my client leave the store with the merchandise. The clerk didn’t see him. The security guard only saw a black male wearing a red jacket. How many black males in red jackets were in the store that day?”
Obviously, I intend for the jury to consider that the weak or non-existent identification is a flaw in the Commonwealth’s case - that they have not shown beyond a reasonable doubt that my guy is guilty. But by extension, I am asking the jury to infer that perhaps it was not my client at all, sauntering out of Bloomingdales with stolen stuff under his jacket, but some other guy. And I contend this is a perfectly ethical argument for me to make, even if my guy told me he did it.
Naturally, I couldn’t put him on the stand if I knew he did it, and I knew he was going to lie. But I am free to argue inferences from the evidence until the cows come home.
Spooje- I hate to say it, but isn’t eyewitness identification the LEAST reliable type of evidence? And what people refer to in a derogatory manner as “circumstantial” evidence is actually the strongest?
Anyway, the only way our system works is is the defense attorney provides the best possible defense to every client. Of course, that could mean that although a client has a right to the best possible defense, he does’nt necessarily deserve MY ATTORNEY… Hubby used to prosecute, but if he ever crossed over to defense, he knows that there are some cases he just won’t take. But don’t worry, someone will.
That is what I meant to say. But as per usual, I did not express myself well. Eyewitness IS the least reliable, but is still the most complelling. That was the point of the A&E show. Such testimony carries more weight with a jury than scientific testimony. Possibly because jurors a) can get either bored or overwhelmed by scientific jargon, and b) they are not AWARE that eyewitness testimony is so often mistaken.
In my example above about the man convicted on eyewitness testimony, but cleared by DNA, both witness STILL insist that this was the guy that raped them. The show offered several possible reasons. 1) The trauma of the crime. 2) They had both seen the suspect earlier on the day they were abducted. (he worked next to where they were abducted) 3) He resembled the assailant. 4) Their recollection changed to fit the ‘facts’ presented to them. Memory is weird thing.
Along the lines of what Bricker suggests, we often refer to “red face arguments” - those you can present to the court without getting totally embarrassed. Hey, if you have an argument you can make, go right ahead, as long as it is not directly contrary to the facts and applicable law. And often your duty is to make the argument, not to win the case.
Yes I agree PDs serve a difficult and necessary function. Yes, I admit that I could not do it.
I appreciate your comparison of lawyer integrity to plumbers, saleclerks, construction workers. Sorry if you interpreted anything I’ve ever said to say that all lawyers are (fill in the blank). My position is simply that for most, being a lawyer is just a job, same as being a plumber, salesclerk, construction worker … (Note, I said most. Also, I omitted doctors.) My problem is when lawyers hold themselves out as practicing a noble profession, when IMO the majority of lawyers are more involved with their client’s self interest, than the integrity of the court system. And, IMO, many qualify as whores fighting over money. That is my opinion and experience. You are certainly free do differ. I do not personally afford a great deal of respect to someone whose goal is to help a stupid or wrongdoing client avoid the consequences of his actions, whether on the criminal or the civil side. Our system may require it, but I don’t need to respect those who do it.
And I agree with whoever said that PDs don’t lack for clients they can be pretty darn sure committed the crime they are charged with. Again, you may disagree. I would suspect that disagreement would be somewhat naive, but I could certainly be mistaken.
I note no one has commented on my very narrow original comment that is, many of the technicalities discussed come to bear on determining the degree of punishment or culpability, not guilt or innocence.
So, to continue the analogy, I suspect most plumbers, salesclerks, etc., admit that they do their job to earn a living, not for some higher purpose. They do not claim to be doing praiseworthy work upholding the integrity of the plumbing system, for example. I think more lawyers should acknowledge that they are just doing a job, rather than tacking Esq. at the end of their names, referring to each other as “learned counsellor,” and referring to their obligations as an “officer of the court.” IME, far more attorneys wish to present themselves and their jobs as something more than they are, a trait I have not experienced in plumbers and sales people. Hey, after the holocaust, the plumbers and construction workers are going to be eating us lawyers!
When your lawyer does a bad job, you could go to prison. There is a little more at stake to the individual, and to society at large, in the legal profession than with plumbers, salesclerks, etc…
Darn, I had hoped I included enough modifiers in my previous posts. How about these wrinkles:
-IMO it is appropriate that some wrongdoers deserve to be punished, whether by being imprisoned or otherwise. Some folk actually did what they are charged with.
-Also, shall we distinguish between criminal and civil? I wonder what the figures are, what percentage of lawyers handle cases where liberty is at stake, as opposed to dollar signs. What percentage of lawyers have never seen the inside of a courtroom? That includes those who hold themselves out as concentrating in litigation. The idea of the practice of law being that individuals’ life and freedom continually hangs in the balance is more a factor of television shows, than it is the experience of a good percentage, if not most, practicing lawyers.
If I work for corporation X, I do what corporation X tells me is best for them. And if it bothers me that my employer is trying to pollute as much as possible, or avoid or minimize liability for producing a deficient product, my option is to find another job. Maybe for a public service firm at a fraction of my old salary. Or maybe for a less greedy corporation. Meanwhile, I have an obligation, as corporation X’s attorney, to do whatever I can within the law to maximize my client’s interests, which generally means maximizing income, and externalizing costs whenever possible. Hey, that’s fine. But don’t try to paint yourself as some noble servant of the public interest.
Do you believe it is an infrequent occurrance for large corporations or large firms to try to intimidate less well fed adversaries, or try to propose insurmountable litigation costs in order to obtain a favorable settlement? Does every citizen receive equivalent legal services, independent of their ability to pay?
Yes, having a system based on laws provides tremendous benefits to our society. But I submit that law as it is currently practiced imposes some costs as well.
You are quite right that the system is far from perfect. And no, you don’t get the same amount of justice if you’re broke, it seems. And there are some practicing attorneys that need to drug around back and shot for the greater good of society. But there is good and bad in all proffessions, and while lawyer jokes are funny, I think we are over-generalizing a bit.