I would defend him. The rule of law is far more important to me then revenge.
Osama walks free and I’m the most hated? I could understand second most hated. but dam those people and their misdirected anger. If the American people want to take out their frustration on me that is pretty sad. You know they could direct some of it at failed prosecutors, the failure of our government to gather evidence in a lawful manner.
So the consequence of a fair trial is getting someone getting shot in the head? Well if someone is going to die unfairly I’d rather it be Osama, so I’d walk away if the only result is an unfair trial for him.
My judge friend however seems to be willing to force a fair trial so the inevitable consequence is the lawyer defending him dying. Having prior knowledge of that I would have a serious moral issue passing the case on to someone else who is unwitting to the being shot in the head part. I would devote serious time to finding him another lawyer who is more willing to be shot over his principles. If none can be found, sad day for me. I guess I’ll be doing the death march out of the court house.
I am assuming the following scenario -
[ul][li]There is no doubt about Osama’s guilt[/li][li]If I take the case, Osama walks.[/ul][/li]
The purpose of the presumption of innocence and the right to counsel and so forth is to protect the wrongly accused. We err on the side of caution to achieve this - that the truly guilty are acquitted is an unfortunate side effect. Unlike other cases, we know for a fact that Osama is guilty.
Therefore, the cause of justice is served by convicting him. Acquitting him is a less just outcome.
The reason lawyers are expected vigorously to defend the guilty is because we cannot be sure they are guilty. We can in this scenario.
I would go even further, and suggest another complication. There is some irrefutable but tainted piece of evidence. If I don’t ask certain questions on cross-examination, or don’t move for dismissal of the evidence or something, it will be admitted into evidence. Nobody knows this but me and Osama, and he doesn’t know American law well enough to realize this.
I take the case but do not challenge and Osama is convicted.
If we had perfect ways to establish guilt we would not need lawyers, or the presumption of innocence.
I am a lawyer, and under all three questions I would take the case.
A fair trial is what separates us from him. It is as simple as that. If our legal system is unable to provide such a trial using the same rules as applies to everybody else, then we have become the enemy. If I am asked to defend him, I do it the best I can.
I would leave the question of civilian or military trials for another day.
But, I don’t believe he lives to see a courtroom anyways. He won’t come crawling out of his hole peacefully. There will be a battle, and some marines are going to pull his lifeless body out of a cave. I am OK with that too.
It’s surely a common question in legal ethics, just magnified. Osama killed lots of people. But surely the question of “should he for practical and moral reasons have a fair trial, or not,” is much the same. Lawyers must commonly be in the position of having clients accused of murder admit to them they’re guilty, and ask if they can still conduct a defence. People accused of horrible crimes must find it difficult to find someone to defend them. It’s a question anyone used to defending suspects must have considered.
(And I don’t know, but I wouldn’t be surprised if there WAS difficulty with the evidence. If he says “it’s all #2’s fault, I just talked big” can you prove how much he personally did? Hopefully there is good evidence, but I don’t actually know.)
But that’s clearly nonsense. There are plenty of people willing to defend him. If not, someone will be appointed. There is no chance he does not get representation, and would likely get better representation than most. Why should I ruin my name, disgrace my family, and possibly die to defend a guy who is obviously guilty? Why would anyone make a choice that would leave their family open to scorn and physical reprisal, and ensure their kids grow up without a father/mother?
Also, I rarely see lawyers go out of their way to defend regular folks who are accused of serious crimes. Where are all the lawyers volunteering to take the pro bono cases that don’t get serious media attention? Surely the same principles apply. Either way, I seriously doubt anyone here would really volunteer to die just to that they could defend OBL.
How do you reconcile that with your ethical obligations, though? I mean, if you choose not to represent him, that’s your choice, but if you do choose to represent him, don’t you have an ethical duty to provide him with the best defense you can? If you’re representing him, you need to act in his best interest. And if you know that the prosecution is entering a tainted piece of evidence that will harm your client’s case, don’t you have the obligation to challenge that, especially if you KNOW that piece of evidence will convict him?
The ethical duty to provide a vigorous defense is like the presumption of innocence - it is a means to an end, that end being justice. It is not an end in itself.
The idea is always “better to let ten guilty go free than to convict one innocent”. In the magic scenario we are discussing, there is no chance that an innocent man will be convicted.
Justice means both acquit the innocent and to convict the guilty. In a world with perfect information, there would be no need of a criminal justice system or of lawyers. Since we live in a world where we don’t have perfect information, we have chosen to run a greater risk of acquitting the guilty. I am not arguing against that choice right now, I am just saying that in the scenario of the OP we don’t have to make that choice.
Also leaving on one side the duty of an advocate to argue extenuating circumstances and/or lesser penalties. I mean in some court where it is either Guity or Not Guilty, and sentences are mandatory.
As I’ve already pointed out on these boards, there’s no way bin Laden will ever get a fair trial in the US. You won’t find 12 jurors in any district who have not already been convinced of his guilt.
With that being the case, I don’t see any way for him to be acquitted. After all, Watchers can lie too.
Therefore, there is no point in me taking the case. Anyway, being the most famous defense attorney in America won’t do me a lot of good (Princhester) when I’m being torn apart by an angry mob.
I will say this, though: I’d rather be the defense attorney than the judge.
I would be proud to do it. The fact that we give fair trials, even to those we despise, is one of the great virtues of our Republic.
I would not do it, however, at the cost of my own life. I’d like to think that I’m the kind of man who could sign on for my own death, if I thought the cause worth it - and there’s no doubt in my mind that the cause of Justice (cue ringing bells and whatnot) is worth it. But I just can’t do that. I don’t want to die.
No. I made a choice long ago that criminal defense work wasn’t for me. If you changed the OP and made it so that I was the ONLY attorney who could do it, then yes, but there are more than enough attorneys out there who are willing to defend depraved individuals that I don’t have to. For myself, I decided my own sense of morality was more important than the process.
Not to fight the hypothetical, but would it change anything if you had reason to believe that the prosecution and/or government that’s supposed to be providing the evidence was deliberately throwing the case?
Yes, someone will be appointed. Me, for instance, as the OP suggested. Why is it so confusing that the ethical thing to do is not to pass the buck? At some point, somebody with a life and a name is going to do his or her job. I’m not clear on why you think this argument is anything other than selfishness, or why you think an alternative perspective is nonsense. You can’t look at a situation like this in the abstract and say “another person” will take the case. Somebody has to be that person.
Moreover, I’d be ethically required not to pass the buck unless a serious conflict would arise from me taking the case. I think I could handle this case without trying to actively sabotage it, so I shouldn’t shirk the appointment.
Right here, for instance. “Where are they?” What exactly do you think happens, all those people are defending themselves at their murder trials, or what?
Oh baloney. Not doing criminal defense work isn’t “pasing the buck” anymore than not being a garbage man is passing the buck on waste management.
Make it somebody who want to then. This idea that there aren’t any other competent attorneys out there is just inane.
Luckily, judges don’t have the power to simply pick out any lawyer they want and appoint them to represent any criminal defendant they want. And unless you are advocating that lawyers should be forced to represent criminal defendants against their will, I doubt there ever will be. Even the MRPC allow a lawyer to avoid an appointement if the client or cause is repugnant. Kinda hard to get more repugnant than Bin Laden.
Isn’t it great. We have hundred, no thousands, no tens of thousands of competent attorneys willing to take on criminal defendants. Thanks for agreeing.
How is justice done by allowing the prosecution to introduce tainted evidence against a criminal defendant? If he’s guilty, let the prosecution prove it legitimately. If you’re willing, as his defense attorney, to fix the trial against bin Laden in this special case because you know he’s guilty, why even bother giving him a trial at all? A show trial is no better than no trial.
Either defend him competently or don’t defend him at all.
You aren’t actually arguing with anything that I’m saying, and your degree of combativeness is really confusing, so I’m just going to drop it. I guess you think I was insulting you somehow? Sorry about that.
Yes, you can claim whatever you like, but it’s an ethical standard. “Claiming it” isn’t really the point. For me it wouldn’t be true that I couldn’t represent him because of my personal feelings, is all I’m saying. So if appointed, as the OP asks, I would accept.