Seconded. Hell, I once represented a neo-Nazi, covered with Aryan tattoos, in a contract dispute. (He actually seemed like a nice guy when I spoke with him, but I was careful not to bring up either politics or religion with him). I could and would represent OBL, since even the scum of the earth are entitled to counsel if their lives and liberty are at stake. But unless it was to save the life of a family member or a dear friend, I can’t envision willingly entering a situation in which I knew I was going to be killed.
Also, if someone actually filed an ethics complaint, there is an element of reasonableness that would come into play here. I’d have a hard time convincing the Maryland bar that I truly found the crime of shoplifting so repugnant that I couldn’t represent an accused shoplifter.
I’m impressed, and saddened, by the number of people here who agree bin Laden would deserve counsel and a fair trial, and would even be happy to see corrupt evidence against him dismissed, in a hypothetical, but heatedly refuse the same considerations to guys locked in cages in Guantanamo, for far less if any reason, in what is a very real situation. Principles that sound noble in the abstract can be problematic when it’s time to actually apply them, apparently.
I don’t think there are that many of those people. AFICR, Shodan is the only one who actively lobbied against shutting down Gitmo, and I may not even be remembering that right.
I took your statement: “Why is it so confusing that the ethical thing to do is not to pass the buck?” to mean that NOT representing criminals is “passing the buck” and somehow not the ethical thing to do. If you didn’t mean that, I apologize, but it seemed to me pretty clear.
I am assuming that he will walk if I challenge the evidence, that it is 100% certain that he is guilty, and that the government cannot prove its case without it.
In a perfectly informed world, you wouldn’t need trials, true.
Again, the only reason for the presumption of innocence and the other rights of the accused is (in my view) because the accused is sometimes innocent. That is not the case here - acquitting him would be a miscarriage of justice.
I can understand how lawyers can feel like their eithical obligation to defend the guilty is a good thing in and of itself, but it isn’t - it is (as mentioned) a means to an end.
Regards,
Shodan
Who? I think these people you refer to only exist in your own head.
There are more than one in this thread alone, buckaroo.
IAAL, but not a criminal lawyer.
I would pass on the case, simply because I’m no longer competent in that area of law. If, hypothetically, I was competent, or if there was no one else to take the case, I would act to the best of my ability without reservation. Not at the expense of my own life though - I’ve got kids to think about.
You make a valid point – assuming, as the hypothetical does, that there is irrefutable proof of guilt available to the attorney.
However, may I bring to your attention that, even though the ideal outcome from the defendant’s point of view may be an acquittal, the ethical obligation to mount the best possible defense is not necesarily to secure that acquittal?
Example: two men who own handguns are logged onto an Internet chat )at the same computer) with webcam going. They have been drinking. They get into an argument, and one (who unaccountably has not unloaded and secured away his handgun) takes it and shoots the other to death, in the heat of his anger at the argument.
There is no question he killed him – it’s recorded on webcam, and was witnessed by other participants in the chat. What there is, however, is grounds to argue for a manslaughter charge, and if the D.A. obstinately insists on a murder charge with no lesser included offense rule present, to show that he was indeed not guilty of murder as the statute defines it (premeditation, and so on).
Granted the D.A. would be a blithering idiot not to pursue a manslaughter charge – but do you see the point I’m making?
A trial is to determine if you are guilty of the crime(s) charged, including lesser included offenses. If you are accused of speeding on Highway 12 at 11:05 AM on Sunday, April 18, and 500 people saw you in church at that time, the fact that the arresting officer meant Highway 120 at 11:05 PM on Saturday, April 17 doesn’t matter – you did not do what you were charged with having done. You are not obliged to prove your innocence of all possible charges whatsoever, just to demonstrate you are mpt guilty of the crime charged – and even there, the onus is on the prosecution to prove you guilty; all you need do is show he has not made his case beyond reasonable doubt.
I want to come back to this for a minute, since I sort of got side tracked by the supernatural stuff.
Here’s the thing - we toss around the phase “If you do X then the terrorists win” usually but not always ironically. The phrase has been over used but there’s a certain truth to it. OBL’s goal was not to just kill people - he wants to destroy American and what we represent to the world.
In my opinion, the way to defeat Al Qaida and to demonstrate to OBL that he lost, is treat him the same way we do any other criminal. If he forces us to lose ourselves and the rule of law which is central to our society - he will win, even if we manage to execute him.
Just killing him isn’t the win condition. Subjecting him to our rule of law and demonstrating that our way of life is unscathed - that’s how we win, even if he walks away, even if he never gets it.
It’s not about him. It’s about us and how we’re better than he, and how he didn’t even touch us.
Privately, I can see how you would feel that way.
What do you think about the argument that it would also be a miscarriage of justice for the government to obtain a conviction based entirely on fraudulent evidence, and that the one is only a miscarriage to you, while the other is public? In this scenario, you’re the only living person who actually has the perfect knowledge that leads to your ability to throw out the presumptions of innocence, so I wonder whether you weigh the personal knowledge of what the proper outcome is against your knowledge that, as far as the government knows, it is fraudulently convicting a man they know they can’t prove did anything. Are you comfortable with, for instance, the current U.S. government making those decisions going forward?
I guess I hadn’t even really considered that angle, and I can see where it sounded like that. I already do get court-appointed from time to time, so it was easy for me to slip into explaining my own personal perspective. brickbacon asked “I can understand and appreciate why it’s important that he have a fair trial, and a competent attorney, but why would it have to be you?” and my circumstances are such that I really think I would be passing the buck if I turned it down. If I was in civil practice the idea of that phone call out of the blue would be a very different experience, and I didn’t mean to speak to that possibility at all.
Exactly right, Merneith. Well stated.
Oakminster, how do you tell which defendants are “monsters” and which are merely reprehensible humans? I really want to know what the distinguishing feature is.
Hm.
Hmmmmmmm.
Hm.
You know what?
I think Shodan has made a really interesting argument here. Actually, I think he may have made the right argument.
As long as I keep reminding myself of the epistemological fantasy at the heart of the OP’s scenario, Shodan’s reasoning looks, for all the world, correct. Or at least plausible.
On the other hand, the OP makes a terrible assumption: “The reason lawyers are expected vigorously to defend the guilty is because we cannot be sure they are guilty.”
Putting aside the magic here, there is another way for the lawyer to know their client is guilty - the client can tell them. In this case, the lawyer is still expected to argue the case, correct? Unless I’m very, very confused?
In this case, if the defense wins as a result of aggressive defense of the guilty party, justice would be sacrificed to avoid discouraging the accused from seeking legal counsel, but it does drive a spike into the assumption that the defense lawyer should decline to aggressively defend the guilty, doesn’t it? (Presuming the lawyer is court-appointed of course.)
Within the constraints of the hypothetical being a fantasy, maybe, but even so it ignores the need for society’s representatives to appear to be applying justice fairly nonetheless. Shodan’s answer is inapplicable in a real world situation, however.
Gotcha. Sorry if I jumped down your throat.
Also to make sure they are treated fairly. Equally-guilty clients can get widely varying charges filed, and wildly-varying sentences after their convictions, depending on the overall performances of both counsels, right? What happens inside the courtroom is only part of the job, and maybe not even the most important part.
Back to the real world: There have also been many, many people convicted whom everyone simply *knew *was guilty as sin, beyond not only a reasonable doubt but beyond even a shadow of a doubt - but evidence turned up later anyway, even after an execution. We know we can’t ever be sure, and even if we had a Watcher we couldn’t ever completely trust him to be right, either.
In any case, we do need to show that we have a process of justice, and that it is being applied fairly* and to everyone*. We have to be able to show not only the world but each other that if even bin Laden can get a fair trial, anyone else can, too. Anyone. That’s an obligation that comes from a claim to be a civilized society.
I gotta admit, I don’t see how it would leave any scars.
Bin Laden’s an evil bastard, but he’s no more monstrous, really, than lots of people who’ve gotten fair trials in any number of courts. How is doing your job as a lawyer scarring? It’s not like I’d be forced to participate in a terrorist attack.
The answer is no. I am not qualified to represent a criminal defendant, and there are lots of better qualified lawyers. Even if I were a criminal lawyer, I have far too much of a historical and political interest in the subject matter that attorney/client confidence and the relationship and effectiveness of counsel would be severely compromised. I am far too interested in what Osama (who I believe has been dead for a long time, but never mind that) would be able to add to the historical record and want to make it public.
And screw the Watchers. Bunch o’ assholes if you want my opinion.
Michael Tigar the guy who represented Timonty McVeigh’s buddy Terry Nichols would be my recommendation. Saved Nichols from almost certain execution.