A DNA test has exonerated a man serving life plus 30 years for rape. The adult rape victim identified Larry Johnson, an innocent man, as her attacker.
I’d be interested to hear what JohnBckWLD and Brutus have to say about this story. They’ve argued that attorneys shouldn’t represent “guilty” defendants. In this case we had the victim’s identification and circumstantial evidence tying Mr. Johnson to the crime. Is this enough evidence under your system to prevent an attorney from representing Mr. Johnson? Given that the victim was mistaken in her identification do you still condemn defense attorneys for questioning a victim’s story?
Wouldn’t he bloody well tell him? I would like to ask those familiar with lawyering how frequently clients withhold the truth from their attorneys, because it seems to me that he’s not doing himself any favors. Your lawyer needs to know all the facts to adequately anticipate the prosecution’s case.
I asked a friend of mine about this. She worked as a public defender and she generally asked, since that was the best way to figure out what was going on in the case. In her experience, people would admit to stuff like larceny but would deny things like rape, child molestation and other sex crimes that carry a strong social stigma.
She also said there were circumstances in which her client was a good citizen and had a good defense available or might get some evidence thrown out. If she wanted the client to testify she wouldn’t ask him if he did it since it would be unethical for her to put him on the stand and allow him to claim innocence if she knew he had committed the crime.
Her experiences are similar to those of some of my professors who had spent time as criminal defense attorneys. Basically, it depends on the situation. Often it’s best to ask your client. But in some cases you don’t ask, and in other cases they will not tell you the truth.
I think I see our problem here. On one hand we have reality represented by the every day work of the criminal courts involving real people with real trouble facing real consequences. This is the world in which a lawyer’s duty to the client and system demands a vigorous defense no matter how odious the client is or how strong the case against the client is.
On the other hand we have the world of unreality, represented by movies, John Grisham novels and TV commentators that has nothing to do with real people, real trouble or real pain. This world of unreality is the one where we ignore two or three weeks of trial and focus instead on a six second sound bite of a rabble of interested citizens howling for blood. We show the sound bite on the Six O’clock News, as presented by a suit with a nice hair cut who wouldn’t know an arraignment from a mittimus if it bit him on the butt.
It seems to me that pravnik has it about right when he/she suggests that the real point of this thread is not that defense council are immoral, unprincipled scum balls for representing gasp people hailed before the courts for heinous crimes, but rather whether the time honored adversarial system should be dumped in favor of some system that gives a better chance of conviction of the factually guilty, the acquittal of the factually innocent and a greater sense in the reliability of the system.
I’d like to know what alternative system is being proposed by our friends, and how that system would avoid becoming the tool of political manipulation. Any number of modifications have been suggested in the past including jury nullification and the appointment of ordinary citizens without training in the law as judges. Do any of the “down with legal technicalities-kill the lawyers” types have any legitimate suggestion for reform of a system that has served us and our British predecessors for nearly one thousand years?
“Conservatives” like Mr. O’Reilly are not being “conservative” at all on this issue. They are advocating a radical change to an ancient and time-tested system.
And before anyone says “things are different now,” they aren’t. I’m quite sure that some commentator complained about the “legal technicalities” (or whatever they called them back then) that allowed Lizzie Borden to get off - even though everybody knew she “took an axe/and gave her mother fourty whacks.”
As foreshadowed in my original post; I do allow emotions to shape (cloud) my opinions and my judgments.
Allowing human emotion to enter a debate is sometimes necessary.
One one hand; Reactionary policies can lead to injustice.
But on the other hand; The unethical pursuit of an acquittal by any means necessary is nothing short of an assault on society.
Unlike Badtz Maru, I do not believe
Because, as clarified by Zoff, there are no verifiable or concrete
in the US Constitution, the State Constitutions, or the ABA’s rules of conduct.
I thank SuaSponte, whose further clarification of the ABA’s rules (that a)
from discontinuing legal representation, no matter how repugnant the accused acts may be. No matter how you twist it, putting acquittal at any price, letting the guilty walk free via any means necessary is not principled…it’s disgusting.
I can’t cite this, but wouldn’t most criminal lawyers have to state to their client,
"In order for me to give you a non-contradicting and adequate defense, you’re going to need to tell me where you were and what you were doing on the night you were accused of [sub](insert felony of your choice here)[/sub]
IMHO Sua, the ancient and time-tested system sucks. Excessively worded criminal laws are written and interpreted by lawyers. Too often (ignorant) juries are manipulated by defense counsel and not guilty verdicts are returned. Here’s what goes on in my neck of the woods
Comparing the Bronx to the adjacent County of NY, either
the NYPD is 24% more vigilant or
the DA’s office 24% more incompetent or
the jury pool is 24% more easily fooled and confused by defense attorneys.
To the best of my knowledge, it’s the latter.
The reason I blame attorneys as opposed to the system in general is because lawyers are the ones that created it and the ones who profit from it. Just like so many posters pointed out, there are very few limitations on what tactics can be used in a trial. And yes, there is a guarantee of presumed innocence. But I would argue the presumption of innocence is a mandate upon the courts, not on individual citizens who care to opine or on defense attorneys who wish to put ethical values over blind legal ideology.
I’ll concede: The rules & laws in our criminal justice system need to be changed and amended and the most egregious tactics made illegal.
[grassroots, stadium-mentality rant]Just like newly passed regulations against CEO’s, CFO’s, accounting firms and the like, it’s high time the legal profession starts acting in a more ethical way…either that, or let them & their children move from their gated communities and into the same neighborhoods as the Alejandro Avila’s of the world.[/grassroots, stadium-mentality rant]
Can a defense attorney do that? I mean, doesn’t a defendant have an absolute right to testify if he/she wants to (disregarding whether it’s a ill-advised move on the defendant’s part)?
A witness is not a particularily effective tool in a criminal case, from my understanding. Also, circumstantial evidence is not an acceptable ‘proof beyond reasonable doubt’ of a suspects guilt.
Mr. Johnson was screwed. The system failed him, and us, since there is still a rapist running around out there.
When I say that lawyers should not defend clients they know to be guilty (not in the legal sense, of course, since no jury entered the scene yet), I mean that the lawyer used his or her oft-ignored ‘common sense’. There is the suspects semen on the body. There is a videotape of the crime. The suspect admits to lawyer his guilt. The suspect flees from police in a white Bronco. That sort of thing.
Common sense would tell any reasonable person that this fellow is guilty as hell, and there is no way that they would try to put this person back on the street.
You realize that these are very rare occurrances, right?
Look, the client will almost never say ‘I did it, but you got to get me off’. I say ‘almost never’, because it may have happened once or twice. But I know a lot of ex-junkies, being one myself, which means I know a lot of people who have been to trial. Our mantra was ‘Deny everything’. That included when you were talking to your lawyer. Clients do lie to their lawyers.
Or none of the above. First, every case is different and you have many variables. What’s the quality of the police working in that particular area? What was the quality of the evidence? You’re simply making a bunch of inferences that support your position. You also failed to account for the fact that, according to one of my professors who was a former defense attorney, about 90% of all people charged with a crime make a plea bargain before going to court. So your statistics are badly skewed towards those cases in which it’s a close call. Yet you simply want to lay it at the feet of defense attorneys.
I think that’s a flawed interpretation of what people have said in this thread. There are many ethical limitations on what an attorney can do. The attorney cannot lie or suborn perjury. All a defense attorney is doing is attempting to raise a reasonable doubt by offering a different interpretation of the evidence.
Yet you’ve utterly failed to point out the “most egregious tactics” aside from making sweeping generalizations and assumptions that do not stand up upon investigation.
Yes it is. A conviction can be obtained on circumstantial evidence. But that’s beside the point. You’re contention was that attorneys should make “common sense” judgments about a client’s guilt. Why would it not be “common sense” for an attorney to believe his client is guilty if the victim identified him and there is circumstantial evidence? If it’s just your personal belief that it’s not enough, that’s fine, but tell me how to make a systemic change that defines “common sense” for defense attorneys. What’s the level of evidence necessary? After all, there was enough evidence for the jury to believe he was guilty beyond a reasonable doubt. Are you saying that “common sense” should carry a higher burden of proof than a conviction in a criminal trial? If so, what’s the point of having a “common sense” rule?
Yes. A defendant has the right to testify and cannot be prevented from doing so by his attorney.
One of the most difficult ethical dilemmas is the tension between the imperative of truthfulness towards the tribunal and your client’s right to testify.
Since a client’s right to testify is absolute, a lawyer who knows his client will offer perjured testimony cannot prevent him from doing so. At the same time, he cannot ethically use this testimony.
Most ethics opinions in this case advise the lawyer to strongly discourage the client from testifying. If he persists, the lawyer should arrange, at sidebar, for the client to present his direct testimony in narrative form, and avoid arguing the testimony at closing.
Where’s the debate? I haven’t seen a single person argue that defense attorneys should “let the guilty walk free at any price.” Indeed, as has been repeatedly noted, that would be unethical and illegal for the defense attorney - that’s how attorneys lose their licenses.
For that matter, you haven’t pointed to a single case in which a defense attorney acted to let his client walk free “at any price.”
What were three “horrible things” you said Avila’s defense attorney did?
Challenging the accuracy of the recollections of children. Horrors. Someone else has already noted the horrific day-care cases, where people spent years in prison because of children’s completely wrong testimony.
Tell me, do you consider the words of a 9 year old Bible truth in all circumstances?
There is a reason lie detectors are not admissible in court - they are junk science.
But let’s turn it around - O.J. passed a lie detector test before his trial. Do you think the prosecutors there acted unethically by continuing with the trial? If not, why not?
Actually, he’s broken his silence - which, BTW, was the unethical thing to do.
Nope. The reason is that people in the Bronx don’t trust the police or prosecutors. If a cop said on the stand in the Bronx that the sky was blue, a typical Bronx jury would think the cop was lying.
::Blink:: do you have any clue how much a public defender makes?
In New York, the starting salary is $36,000. Barely a living wage in NYC in the first place - and add to that an average of $100,000 in student loans.
It’s just as bad in federal courts
http://www.ojp.usdoj.gov/indigentdefense/icjs.txt That quote, BTW, from the DOJ, not same quack left-wing group.
Sure, there are some exceedingly rich defense attorneys out there. But the majority of defendants are poor; ergo, the majority of defense attorneys make jack squat - I’d wager that the majority of those 50% of defendants acquitted in the Bronx are represented by Legal Aid lawyers - who make the same amount of money, win or lose.
Where? Who pointed that out? Besides the non-lawyers who share your POV, that is.
Hint - The Practice is fiction. In reality, a defense attorney’s tactics are extremely limited by attorney ethics rules and, (since I doubt you place much weight in those) by the rules of the courts.
Read the Model Rules again. I think you missed the point of my earlier cite - it is ethically improper for an attorney to withdraw as counsel because he thinks his client is guilty. An attorney who continues to represent a client he thinks is guilty is putting his ethical values over some ideology.
Once again, what “egregious tactics”? I’m sure that, whatever nightmares you have floating in your head, they are probably illegal already and, more to the point, never happen except on TV.
On a similar note, Bronx juries also give out large cash awards in tort cases. Some say that this is because the Bronx jurors, generally poorer than jurors in the other boroughs, identify with the tort plaintiffs and are more willing to empty deep-pocketed tort defendants.
In the case of criminal trials, the ethnic and racial makeup of the jury can be a factor, and blacks make up the plurality of the Bronx. In the case of civil trials, the economic makeup of the jury can be a factor, and in the Bronx, over 25% of the families are below the poverty level.