This may rehash thing already said here. I hope, nonetheless, that it adds something to this discussion. Point the first; we are dealing with a point initially raised by our mutual friend Bill O’Reilly, who is not known for his general fairness and objectivity. Point the second, there has to be some understanding of the DUTY of both prosecutor and defense counsel in a criminal case.
Both the prosecutor and defense counsel have an absolute obligation to the client. For the prosecutor the client is the government (and specifically the government in the exercise of its police power). Defense counsel’s obligation is to the accused. For both, the duty to the client is constrained by their duty to the court, meaning the system. On both sides the duty is to marshal and present the evidence in the light most favorable to the client. Our system expects that truth and justice will result from the vigorous presentation of the evidence. Both sides have a duty to the court to not present false or perjured evidence—but we rely on the give and take between prosecutor and defender to expose false or perjured evidence. We also expect the fact finder, judge or jury, to consider the possibility of false evidence in reaching a decision.
That said, the defender has no obligation to lie down and play dead. There is no obligation to pull a punch or to withhold from putting on the most effective defense possible just because the evidence is overwelming or claimed offense is especially horrible or the defendant’s character terribly reprehensible. The duty is to fight the best fight possible within the rules of the court. That duty is absolute.
All too often, and here I speak from personal experience, the defender has no arrow in his quiver except to try to persuade the fact finder that all of the prosecutors evidence does not amount to proof beyond reasonable doubt. All you can do is suggest that the government’s evidence is something short of perfection. You point out that the witnesses are unpleasant people, or that their recollection might be defective, or were not in a position to see and know all that might be wished, or have some personal interest is seeing the defendant put away where he cannot hear the dogs bark. To a great extent it is grasping at straws and the best you can hope for is to convince the fact finder that while the defendant did something bad it was not as bad as the prosecutor says.
While it must be nice to be infallible like Mr. O’Reilly, and to have his sense of moral certainty, his televised blathering has little to do with the sometime unpleasant business of defending, or prosecuting, a difficult trial of a reprehensible crime. Just as the uninformed think that farming, plumbing, bricklaying, school teaching and the practice of medicine are simple things that they are perfectly capable of doing as well as the people who have made it their profession, any one in the law business knows full well that every loud mouth with a microphone is going to tell you how to do your job. These opinions are like rectums, there is no qualification or experience necessary to have one.
[OT RANT]
Prosecutorial discretion is a sword that can be used for either great good or great evil. Unfortunately prosecutors too-often forget that their client (the government) is not best served by securing a conviction at all costs (that only serves the prosecutor’s reputation) but by insuring that the case is decided upon proper and sufficient evidence. Prosecutors are supposedly under a duty to disclose evidence that may help the defense or might mitigate punishment.
Check out http://www.lairdcarlson.com/grip/Case%20Introduction.htm for some interesting reading on people who were murdered by the state because of (in large part) prosecutors who forgot who their client really was.
[/OT RANT]
One point that has not been raised is that most accused criminals avoid this entire debate by refusing to testify.
Per the ubiquitous Fifth Amendment, criminal defendants never have to lie on the stand, because they don’t have to take the stand. Even if the defense attorney has ample reason to believe his client is guilty, he can avoid the ethical questions raised in the OP by refusing to let his client testify. All the attorney needs to do is sit back, and question the prosecutions evidence.
To shift the debate a bit…The evils of which the OP speaks are, IMHO, more a function of the criminal standard - ‘beyond a reasonable doubt’ - which places a huge burden on the prosecution, than a function of a defense attorneys moral conduct.
Why? Any suggestion of tainted evidence, improper police procedure or witnesses with schmutz on their glasses and the perp walks. While I am no expert in the history of this standard, I am aware that one way of dealing with these problems. The Scottish criminal justice system has a third verdict - ‘not proven’. This verdict basically means that the jury believes the defendant committed the crime, but the prosecution couldn’t/didn’t prove its case. This verdict means no jail time, but it does follow you around on your ‘record’, and you end up on some form of probation (in case you commit another similar crime). While this verdict may only result from bad Scottish lawyering – it does present a some solution to the problem.
No one likes to see ‘perversions of justice’ but to resolve the debate, I must ask the question - what is this ‘justice’ that is being violated? Is justice served by following the established rules, or is it some notion we all inherrantly understand that was presented to us by a higher power? Do we violate justice by not following the rules presented, or does the unwritten divine concept override?
FWIW, the report in the URL is from a group seeking abolition of the death penalty and is being reproduced in an internet site for prisoners. The case summaries of the reports are filled with many legal conclusions that may or may not be correct.
[OT]Concerning the Fifth Amendment, that reminds me of the final Seinfeld episode and the trial. Jerry and his buddies did not seem to ever testify and assert their good character, yet the prosecution based its entire case on their character. To quote Jerry: What’s up with that?[/OT]
Nevermind my OT post. That no one testified for Jerry, Elaine, George and Kosmo is really only in part in reference to the Fifth Amendment, as it wouldn’t apply to the others testifying on the four’s behalf. I guess it was a subconscious attempt at a hijack, as that episode’s entire court proceeding, not to mention the ridiculous penalty, bothered me. My bad.
I tells ya, only a Brooklyn Law grad could grasp the bigger picture that way. You are dead on; the OP frames his post as a complaint about defense attorneys when he is really complaining about the system as a whole.
The real question is not whether defense attorneys should use what the OP uncharitably describes as “smoke and mirrors.” Indeed, the defense attorney is ethically obliged to use all legal tactics at his/her disposal to get his/her client off. The real question is whether the rules should be changed to make more tactics illegal.
If that’s your position, Mr. Buckwald, debate that. Don’t trash defense attorneys for doing the job they are ethically required to do.
The man who successfully defended Alejandro Avila against child molestation charges last year says he’s “shocked” to learn his former client has been charged in 5-year-old Samantha Runnion’s killing
Paul Dickerson, the prosecutor who tried the case in 2001, has been said to be devastated about his failure to persuade the jury of Avila’s guilt. But Samantha’s mother, Erin Runnion, said it was not Dickerson’s fault.
“I blame every juror who let him go, every juror who sat on that trial and believed this man over those little girls.”
—Erin Runnion - Samantha’s mother
I think I can see how a moral lawyer could believe so strongly in our system of law, which involves every American’s right to a fair trial, including a lawyer who will make the best honest defense possible, could defend someone who turned out to be guilty of a horrible crime and still be acting morally.
Without those lawyers, after all, how could we ever be sure that the right people were being convicted? The courts would be little more than lynchings, but with nicer clothes.
Of course, the moral lawyer will make the best defense that is consistent with the truth, and will not make false statements or encourage his client to make false statements.
I read the article linked by sailor and I think Avila’s former defense attorney has come perilously close to an ethics violation. An attorney’s duty of undivided loyalty to his client, while diminished, does not come to an end when the representation ends. At the very least, the attorney retains his duties of loyalty and confidentiality about the matter in which the attorney represented the client.
Of course you can put on a defense for the guilty, but should you?
No, you should not. Putting the guilty back on the street through some legal technicality is not justice.
The fact that our bloated and out-of-date legal system cannot competently deal with criminals should not punish 5 year old girls playing in front of their houses.
I absolutely agree. No defense attorney should defend the guilty. Of course, no one is guilty until a court finds them guilty.
BTW, there is no such thing as a “legal technicality.” Someone created that phrase a while back, and it has unfortunately gotten into the popular usage, but there is no such creature. A thing is allowed under the law or it is not. Period.
True. But in popular usage, I think ‘legal technicality’ means ‘weasel-like tactic’ (Twinkie defense [Bad example, I know]). Not outside of the law neccesarily, but common sense tells us that certain things which may be legal, are not right, when it comes to a criminal defense.
OK, so if you were arrested because the police broke into your house without a warrent or probable cause, ransacked the place, and found evidence of an illegal poker game you held two nights ago, no moral lawyer should defend you?
Sorry, a legal defense is a moral defense. You may not care to do it, but it is in the interests of justice for a good defense to always be asserted. If you define quashing illegally obtained evidence as “weasel-like tactics” then you pretty much give the police the right to ignore your constitutional rights.
Actually, “legal technicality” generally refers to illegal searches like Telemark references, or unMirandized confessions, that lead to the exclusion of evidence, not things like the “Twinkie Defense”.
And Brutus, when you think about it, the Exclusionary Rule is probably the best response to illegal searches and seizures. Think about it.
The police, by acting as they have, have violated your rights. We can’t ignore those rights - they are constitutional, and a “right without a remedy is no right at all.” There are effectively only three remedies for the police’s illegal action:
a civil claim for liability against the police officer;
(if involving an illegal search of your home or the like) criminal charges against the police officer for trespass; or
exclusion of the illegally obtained evidence.
Which one of those choices do you think provides the least deterrent to aggressive police investigation of crimes? I’d say the one that does not lead the individual police officer exposed to personal liability or incarceration.
Brutus, about the only place I have seen the phrase “legal technicality” used is in the intro to Chuck Norris movies where it is explained that some incredibly evil and politically subversive Baddie has escaped his just deserts, always with a display of bravado and arrogant by the Baddie, and therefore Ol’ Chuck is perfectly justified in conducting a private vendetta, and in speeches by demagogic politicians and political cheer leaders. Usually the phrase means that the result of a prosecution was not every thing that the guy who sees a ‘legal technicality" at play would want. I suppose the O.J. Simpson trial is a classic case of a “legal technicality,” the technicality being that even in the face of a strong case for the prosecution, and a general dog and pony show for the defense, the jury could not be compelled to convict.
There is another way of doing these things, one that has been a time-honored method and dispenses with the sort of “legal technicalities” that might prevent a proper out come. We can combine the idea of a People’s Court with mass media marketing. We don’t have a trial in a sports stadium with thousands of screaming spectators. What we do is have Geraldo do a 30 minute (22 minutes after commercials) investigative report on the more sensational aspects of the particular event as deemed relevant and persuasive by Geraldo and then have the viewing public phone in their verdict to a 900 phone number. Just to be fair, there would have to be a 60% majority to convict. If convicted the defendant would be battered to death with baseball bats by retired professional wrestlers on prime time TV, probably on Fox or Praise the Lord TV. We might have to make some pretty radical changes to the way the whole thing has been structured since sometime before the Norman Conquest, but it ought to please O’Reilly.
Again, I gotta ask. How would the attorney know the client was guilty???
Should the court have accepted the word of two 5 year olds and not allowed a defense? Of course not. It is possible for 2 children to concoct a tale. It is possible for 2 children to be pawns in a scheme of an angry parent. It is even possible for 2 children to accuse the wrong person…all of these, I believe, have happened in the recent past.
People have been wrongly convicted. Eyewitnesses have been mistaken( A and E did a show on eyewitness testimony and how unreliable it is. One case they mentioned involved 2 women who raped at different times. Both accused the same man, and ID’d him in court. He was convicted. He was later exonerated by DNA evidence. He simply had the misfortune of looking like someone else while not having an alibi) Prosecutors have concealed exculpatory evidence…
So how could an attorney know whether or not his client actually did the deed? Unless the client fessed up, or the attorney did the deed hisself, he cannot know anything.
“Legal technicality” was used in the movie Liar Liar, when Jim Carrey won a divorce case based on the fact that his client was a minor when she signed the prenuptual agreement, and that therefore she could not be bound by its terms. He referred to his successful argument and winning the case as prevailing on a technicality. The judge didn’t seem very happy with the characterization and held him in contempt of court. “I hold myself in contempt!” Boo freaking hoo.
The thing I didn’t understand was that she wasn’t deemed to have ratified the contract by not seeking to void until several years later.
You are dead on; the OP frames his post as a complaint about defense attorneys when he is really complaining about the system as a whole.