Sure, everyone has a duty to not break the law. This says nothing of where lies a lawyer’s duty.
A lawyer’s duty is, first and foremost, to his client. A client tells me that he’s going to kill someone? I have no obligation to “the law” in the sense that it is entirely optional if I break attorney/client privilege and tell the police about my client’s intended homicide.
Sure, I cannot act unlawfully - no one can. Yes, I am a steward of the law in my capacity as a member of the bar. I wouldn’t quibble that I share duties to my client and “the legal system”. But my first and foremost responsibility comes to my client.
Bingo. My point, of course, is that the typical lawyer does not go out with gleaming sword in hand to do battle on the field of honor in defense of his client’s innocence, but rather appears at the bar to argue why he should not be convicted of a criminal charge carrying a long prison term. He may well be aware his client committed an illegal act, and be hoping to plea bargain the case to something less harsh. There are issues of proportionality involved. The accused is entitled to an effective and vigorous defense, and de minimis non curat lex.
Yog himself probably has sped ten miles or more over the speed limit on the interstate at some time – and potentially could have killed someone if he had caused a major collision in doing so. Should the officer therefore have arrested him for attempted murder? No, proportionality says a ticket for going 75 in a 65 zone is sufficient. And when a prosecutor violates proportionality, a good defense attorney is needed.
I’m heading out, so in case there’s some nits to be picked:
My point: lawye’rs first duty is to the law, then the client.
You say first duty is to client.
The rules of professional conduct clearly state that one’s duty to one’s client is subject to the law (and, incidentally, morality and ethics, but those are subjective) hence…law first, client second.
If the rule was client first, the rules would say instead:
“These principles include the lawyer’s obligation to uphold the law, within the bounds of the lawyer’s duty to serve the client’s interests, whatever they may be.”
Presumably a client’s interest will include escaping legitimate conviction and punishment for crimes the client actually committed, or perhaps the client’s interest in prosecuting a civil lawsuit for personal gain that has no merit and may be founded on false evidence.
So…no.
Lawyers have gotten so wedded to the idea that they are their client’s advocate, above and beyond all other considerations, because it’s an excellent-sounding justification to do things which are clearly not within the law, moral, or ethical. But it isn’t legitimate.
A lawyer’s duty is to protect and defend his client’s RIGHTS.
If, in the course of doing so, his client escapes justice, that is INCIDENTAL.
It is NOT the lawyer’s job to protect a right his client DOES NOT HAVE, such as the non-existent right to escape punishment.
One fact which seems to be lost in all this is the fact that most defendants are guilty as sin. A trial is only the last step before guilt/innocence is determind. In many juridictions the whole porcess starts from the first report to the police, when they decide whether to send the case to the prosecuting authority or not, that authority which decides to proceed or not, to the court which decides whether there is a prima facie case to answer to the actual trial itself.
At each stage the relevant authority is making a decision based on the available evidence and asking “is it worth going to trial?” Trials are expensive and time consuming things and very often these people will not waste time and resources on matters which have little or even more than little prospect of suceess.
Its not a question of the probity of the police (and I can’t speak for Texas), but they are institutional checks and balances and reviews at every stage; by its very nature, police will not charge, where they think that the prosecutor won’t go for trial, the prosecutor won’t go for trial where he thinks he won’t get a convictions. Do miscarriages occur; undoubtedly. Butr if you read more carefully about them, many miscarriages occur where this scruitny was not done, often crimes which outrages the public.
OK, so it seems to be the consensus of attorneys that they have no problem helping a client who actually “guilty” in the sense that he committed the crime, avoid jail or other penalties, by honest means. Here’s a follow-up question:
Suppose you believed that not only was your client “guilty” but he was highly likely to commit the same crime (or other crimes) again if he was not sentenced this time (e.g. if he was a career criminal or a psychopathic one). Would this change your position?
And suppose you actually helped someone avoid a sentence, and he subsequently killed someone (or committed some other crime). Would you feel guilty?
That avoids the issue. The work of defense attorneys is not limited to cases of prosecution seeking disproportionate penalties, by any stretch.
No. You might as well ask a doctor who treats a convicted rapist and saves his life if he feels guilty if the rapist strikes again.
There are a few possibilities here, assuming I acted ethically…
[ol]
[li]There was insufficient proof to convict. In which case, the aquittal is correct, and the system needs the person to go free.[/li][li]There ‘should’ have been a conviction, but the prosecution dropped the ball. In which case, any guilt attaches to the prosecutor for not doing his or her job properly.[/li][li]There could have been a conviction, but the evidence was improperly obtained, so it is excluded. In which case any guilt attaches to the police for the improper gathering of evidence.[/li][/ol]
All of this assumes I acted ethically. If I didn’t, then yes I would feel guilt. If I did, I played my part in a system that I think is essential to our nation, and played it correctly.
Even with the new hypothetical, the answer is the same. The alternative to defending someone whom the lawyer believes will commit the same crime again is to have the liberty of a citizen turn on an individual lawyer’s judgment about that person. I don’t know about you, but I’d prefer that my guilt and my propensity to commit future crimes be judged by a jury of my peers rather than my lawyer.
It’s hard to imagine that someone who is actually innocent will not be able to find any lawyers who think there is enough doubt about guilt to take the case. So it’s really a matter of whether you can access the lawyer of your choice. People’s ability to select the lawyer of their choice is already limited, mostly by financial constraints. I don’t see “overwhelming likelihood of guilt” as being a worse reason to lose access to a first choice lawyer than “can’t come up with enough bucks”.
Not really. First let’s note that we have to ignore the Constitution for the purposes of this discussion, because the Constitution makes your argument moot: we are obligated to provide lawyers to all criminal defendants. So we’re talking about a theoretical world in which there is no Fifth or Sixth Amendment.
There are two problems with lawyers refusing to take clients because of perceived guilt. The first is the one you find unlikely which is that a innocent but seemingly-guilty defendant can’t find any qualified lawyer to defend him. I’m not sure the frequency of the situation is the critical aspect–do you ever want this to happen at all? You also don’t really avoid the problem by saying that only the truly guilty won’t be defended. Legal guilt is a judgment made by a jury of peers. What you propose is that we substitute lawyers’ pre-trial or mid-trial perception of guilt for legal guilt in determining who should go to prison. There are reasons we think a full adversarial trial is necessary to make these judgments instead of a few interviews and one person’s view of the evidence.
A second more practical problem is that a lawyer usually forms a lawyer-client relationship with a defendant before the lawyer knows enough to personally judge the client’s guilt or innocence. Abandoning the client mid-stream both hinders the client’s defense (a new lawyer has to come on board, learn about the case, etc. having lost valuable time), and isn’t always possible (if the client doesn’t consent, it usually requires the judge’s permission, I believe).
The Constitution has to do with the government and is not a requirement that any individual lawyer take any particular case.
Do I want it to happen at all? Of course not, not any more than you want guilty people to go free and murder future victims. You can’t suggest that someone wants something because it’s a hypothetical outcome of a given general policy.
So the issue is really not whether I want this outcome in rare instances, but whether this possible negative outcome is determinative in terms of the broader issue. In this context, likelihood counts.
Legal guilt is what counts when deciding how the legal system should treat a defendant. Actual guilt is what counts when deciding about policies - including legal ones - that may affect people’s lives.
I agree that this is an issue. In the OP, I separated the first and second scenarios based on this distinction.
I should note BTW that I’m not saying that lawyers should not take the case under such circumstance. Only disagreeing with your specific rationale.
Yes, obviously. But you’re proposing that lawyers not defend the apparently guilty. That will be a problem since such defense is constitutionally compelled. If necessary, the court will force a lawyer to take the job.
So what we’re really asking, in the context of obeying the Constitution, is whether apparently guilty defendants should only have the counsel that is forced to do the job by the court.
You’re right. It counts. I guess what I meant is that it isn’t clear that even a small likelihood of this occurrence is outweighed by the benefits (ethical or otherwise) of having lawyers decide not to defend the apparently-guilty.
There are actually three concepts of guilt being discussed. There’s legal guilt–a judgment made by a jury after a full adversarial trial. There’s actual guilt–a sort of gods-eye knowledge of facts. And then there’s apparent guilt–the judgment of guilt by a lawyer deciding to take or continue a case. I’m suggesting that apparent guilt is a poor substitute for legal guilt in attempting to approximate actual guilt. You suggest that only (or mostly) the actually guilty and not the apparently guilty will lack for representation under you ethical command. But this assumes some strong connection between apparent guilt and actual guilt. If such a strong connection were present, we wouldn’t need the full adversarial trial in the first place.
That might end up happening in some cases. But I imagine for the most part even apparently guilty defendants would find someone who thinks they’re innocent, or at least possibly innocent. And if the rest get some court appointed counsel, that’s not the end of the world either. As above, a lot of people end up with less than optimum representation as it is, for financial reasons. I don’t see this as a constitutional issue.
OK.
The big picture is that only a few such cases will exist. But people’s rights are not based on statistics. A person has the right to have the evidence specific to his or her case heard and decided on its own merits. You can’t say to a person “there’s an overwhelming statistical likelihood that you’re guilty so we don’t need to look closely and fairly at the actual facts of your case”.
But when contemplating the impact of one’s actions (or the actions of many, if many people adopted such a standard) on the public as a whole it’s proper to say the cons are small since a relatively small percentage of travesties will occur.
Here’s another question, inspired by a story currently in the news.
You are defending your client, who is probably guilty. One line of argument that might plant the seeds of reasonable doubt in the minds of the jury is the suggestion that a specific other person is the murderer. Of course, that other person is not going to find it pleasant to be publically identified as a likely murderer, and in fact it’s highly likely that the other person is not the murderer.
How much does the harm that you are doing to the other (innocent) person’s reputation count in deciding whether to push this line of defense? Does it count at all?
