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"Defense Lawyers as a Group"

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Kent noted in the preceding entry that he does not join with those who bash "defense lawyers as a group.  For the most part, they are responsible professionals who perform an important function in our system."

I agree with that, but there is more to say, sufficiently so that I think it's worth a separate entry.

Out the outset, I want to note that, to an extent, Kent has understated the case.  In some instances, defense lawyers are not merely responsible but heroic.  One of the most obvious recent examples was the execrable Duke lacrosse case, in which prosecutor Mike Nifong brought felony rape charges against three white lacrosse players knowing or having reason to know that the whole "rape" was a fabrication.  He brought the charges for one reason only, to wit, that he was in a close and contested primary campaign in heavily black Durham, NC, and wanted to win racial brownie points with the Democratic electorate.  Risking the venomous wrath of the Duke PC community, which is most of the campus, the players' defense counsel showed that the prosecution was a hoax.  This is a shining example of criminal defense as a national treasure. 

Nor is it a lone example.  The defense bar at its best can be a sentinel against corrupt, factually baseless and/or politically rigged or motivated prosecutions.  Unfortunately, such instances are not representative, as I shall now attempt to explain.   

The key to understanding the morality of typical criminal defense work is something normally considered so far outside conventional thinking that it is all but verboten to talk about it. 

The unmentionable key is whether you're representing a guilty man or an innocent one.  And I do not intend here to be doing any fancy dance about gradations of culpability or anything else taken from the usual sources of manufactured confusion.  For purposes of this discussion, a "guilty" person is an adult of sound mind who did it.  An "innocent" person is someone who didn't do it and wasn't in on it.

The problem with our profession's current way of thinking is that it pointedly draws no distinction between representing the guilty and representing the innocent.  When you go to law school, this is one of the first things you're taught.  But to me, this is like going to military school, then not caring whether you fight as a soldier for your country or as a mercenary.  Such breathtaking indifference would, in any other context, be seen as bizarre if not crazy.  But in contemporary legal ethics, it's de rigueur; indeed, it's a point of pride.  Whether the client belted Granny over the head with a tire iron to get her purse, or whether he did no such thing, is irrelevant.  You're expected to extend your best efforts to get him off regardless.  If he did it, and is a good bet to do it again if released, this is no concern of yours.  Granny gets to worry about that.

The central problem with defense work is that the typical client is guilty and his lawyer almost always knows it from the getgo.  This does not dissuade him from pulling out all the stops to try to bamboozle the judge or jury into putting Mr. Nicey back on the street, or, failing that, either to escape punishment altogether or vastly dilute it.  This is accomplished by everything from filing bushels of procedural motions ranging from meritless to absurd, to presenting the substantive case in a way designed to be as misleading as possible.

In a way, this only makes sense:  Since the client in the routine case is factually guilty, of course to be successfully misleading is the Holy Grail of defense work.  The alternative is to see the case presented straightforwardly, which is the quick route to jail. 

So it makes sense.  But does it, really?

Under professional ethics as currently conceived, yes, it does.  Defense counsel's single-minded obligation is to the client.  If the client is guilty, and counsel nonetheless succeeds in getting him off, this is not considered a problem.  Indeed it's considered a triumph.

It is not a triumph for the truth, however.  It is unlikely to be considered a triumph by the client's victim, and still less by his next victim.  The recidivism rate is not zero, and one would think it is particularly high among criminals who know they've already snookered the system.  If defense counsel ever devotes a moment's thought to what the client is planning for his next trick if the defense prevails, I never heard of it.  Certainly the canons do not require it; by their client-uber-alles outlook, they in fact discourage it.

Therein lies my problem with defense work.

We tell our kids that honesty is a virtue in its own right, and that misbehavior deserves punishment.   If we believe that, then typical defense work representing guilty and often dangerous people entails a moral disconnect which, while accepted by the canons, is actually borderline schizophrenic.  What we've created is an entire segment of the legal profession where deceit abounds, future dangerousness is not even an afterthought, and no one cares.  Sometimes the deceit is hardcore (perjury, and in extreme cases witness murder); more often it's softcore (slick maneuvering, theatrics and diversion).  But honesty it is not.  And when on account of it the guilty go free, it has consequences  --  ask the people OJ robbed after his acquittal. 

Adults cannot just blandly walk away from responsibility for what they spend their waking hours doing and seeking.  This is so even if they are only seeking it in a representative capacity.  The canons insulate you, as the defense attorney, from blame for what your client has done, and from what your successful efforts will enable him to do next.  Whether they insulate you, as a human being, from what you have brought about, and its aftermath, is a different matter.  

 

13 Comments

No examples and few facts. Check. Broad, sweeping statements. Check. Too many assumptions to count. Check. Everything and more that I would expect from you.

bhaal: You may not agree with Bill's conclusion but can you honestly say that he has not portrayed the role of defense counsel accurately?

To pretend that a lack of examples or facts hurts his argument is disingenuous.

Examples are in evidence every day in every court in the land!

mjs - the whole argument is flawed. Bill assumes that defense lawyers have some superman like ability to judge the evidence more accurately than anyone else. Defending a client who has told you they are guilty and who wants to plead not guilt is a series ethical violation, as it is perpetrating a fraud on the court. Equally, guessing your client is guilty when they say they are not is also a violation of ethics. The job of the defense lawyer is not to play judge and jury for their own client - the judge and jury are eminently more suited to those roles. If defense lawyers start second guessing themselves then the whole system will break down, which will cause more evil in the long run then Bill's theoretical guilty man going free.

mjs,

As anyone with even slight personal experience working in the criminal justice system in this country knows, you are correct.

bhaal's comments make me cringe. It is clear that he doesn't know what he talking about but arrogantly pretends he does.

what he IS talking about...

In light of the plethora of human rights violations conducted in the United States on a regular basis (such as imposing the death penalty, life without parole, the Three Strikes Law, etc.), US defense lawyers are generally more noble, heroic and righteous than US prosecutors are.

TAOISEACH --

I spent a couple of minutes trying to see if there was one single word in your comment that is correct. Oh well.

Just FYI: The DP, LWOP and Three Strikes are, not only NOT a violation of "human rights," they are all perfectly legal and have so been held by courts of competent jurisdiction in this country numerous times.

Second, even assuming arguendo your absurd premise, your argument goes nowhere. Indeed you do not even attempt to rebut my thesis that defense lawyers operate under an ethos that refuses to distinguish between guilt and innocence; that the resulting advocacy is less than fully devoted to finding the truth; and accordingly that guilty and dangerous people then sometimes get back on the street to harm more victims.

As I say, you don't rebut one word of that. You content yourself to assert (and assertion is all it is) that prosecutors are worse.

Are we supposed to be impressed?

I have no interest in impressing pro-death penalty advocates.

Obviously. Your problem is that even anti-death penalty advocates tend to be impressed more with analysis than belligerence.

Bill Otis says:

"Obviously. Your problem is that even anti-death penalty advocates tend to be impressed more with analysis than belligerence".

They would be even more impressed if the death penalty were abolished entirely, thus doing away with the need for analysis or belligerence.

Bill Otis says:

"Just FYI: The DP, LWOP and Three Strikes are, not only NOT a violation of "human rights," they are all perfectly legal and have so been held by courts of competent jurisdiction...".

Just because they are legal does not mean they are not human rights violations. Beheading and torture continue to remain legal in some countries.

"You do not even attempt to rebut my thesis that defense lawyers operate under an ethos that refuses to distinguish between guilt and innocence".

That's right. I don't. A defense lawyer has both a moral and a legal duty to ensure that prosecutors meet their burden in establishing a person's guilt beyond a reasonable doubt.

Your arguments in this article are weak. And you lecture ME about analysis? Spare me.

"A defense lawyer has both a moral and a legal duty to ensure that prosecutors meet their burden in establishing a person's guilt beyond a reasonable doubt."

When, as a result of a slick and intentionally misleading defense, a guilty and dangerous man gets put back on the street and does it (say, a mugging) again, does the defense lawyer have any accountablility for that?

Does he go home and tell his 12 year-old, "I helped spring a dangerous man, and I knew from his rap sheet that he was a good bet to do it again if I succeeded, which he did, and now some grandmother is in the hospital with a cracked skull (and no purse).

"But, hey, you know, that's the way the cookie crumbles. AND DON'T YOU LOOK AT ME THAT WAY. I held the prosecution to its burden and besides, my client paid the fee, which is going to help with our cruise vacation this summer. Now it's true I've been telling you that you're responsible for the damage you cause or knowingly make it possible for others to cause, but that applies to you, not me, because I have a law license and you don't. Oh, and I've also been telling you that you have to be forthcoming and candid with people even if the truth hurts, but -- STOP LOOKING AT ME THAT WAY -- that also applies just to you, not to me. What you don't understand is that, because I'm a lawyer, I get an exemption from the rules of decency, empathy and honest dealing that apply to everyone else."

Like that speech? Is that the lesson you want to give YOUR kid? Is that the kind of sense of responsibility you want him to have?

Bill Otis says:

"When, as a result of a slick and intentionally misleading defense, a guilty and dangerous man gets put back on the street and does it (say, a mugging) again, does the defense lawyer have any accountablility for that?"

Nope. Unless of course, you think the "beyond a reasonable doubt" standard and adversarial format needs to be changed to say, a truth seeking Napoleonic Code.

Bill Otis says:

"Does he go home and tell his 12 year-old, "I helped spring a dangerous man, and I knew from his rap sheet that he was a good bet to do it again if I succeeded, which he did, and now some grandmother is in the hospital with a cracked skull (and no purse)".

Nope. But he does say I held the prosecution accountable and upheld the rule of law. If you don't have any respect for the rule of law, that is a problem for you and not for me.

Bill Otis says:

"But, hey, you know, that's the way the cookie crumbles. AND DON'T YOU LOOK AT ME THAT WAY. I held the prosecution to its burden and besides, my client paid the fee, which is going to help with our cruise vacation this summer".

Ah, the classic character assassination tactic. Perhaps you should refrain from throwing red herrings that distract from your weak arguments.

Bill Otis says:

"STOP LOOKING AT ME THAT WAY -- that also applies just to you, not to me. What you don't understand is that, because I'm a lawyer, I get an exemption from the rules of decency, empathy and honest dealing that apply to everyone else."

Indeed. The law demands no less of an attorney. If you have a problem with that, change the law. Stop spitting on it.

Bill Otis says:

"Like that speech? Is that the lesson you want to give YOUR kid? Is that the kind of sense of responsibility you want him to have?"

It wasn't much of a speech. It was more like a juvenile rant.

And yes, responsibility requires that we uphold morality and defend the most vulnerable in our society against the populist mob of vengeance.

It does not surprise me that you have so little respect for using the law to protect vulnerable defendants. You support a plethora of human rights violations.

Take the death penalty for example. Many countries refuse to extradite suspects to the United States unless there is an assurance that the death penalty will not be sought.

In other words, many countries prefer a person NOT to be punished than to be slaughtered to death like an animal in the name of "justice" even if he is GUILTY of that offense.

If I ever defend a person on trial for a capital offense, I will do everything in my legal power to defend him from being murdered by the state, EVEN IF HE IS GUILTY. There can be NO EXCUSE for the infliction of human rights violations by the state on anyone.

And another thing. If we abolished the "beyond a reasonable doubt" standard and adopted, let's say, a "preponderance of the evidence" standard in criminal cases, crime in the United States would plummet and countless innocent lives would be saved. If we also introducd torture for criminal suspects, we could save countless lives through a radically more efficient criminal justice system.

But that would not be moral now, would it? It does not surprise me that you use victims as pawns to conceal your heinous disregard for protecting the more vulnerable clients in criminal cases, i.e. criminal defendants.

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