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An Odd Setting for Moral Preening

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This post is devoted to venting.  Be forewarned.

I have previously blogged, here and here, for example, about the ethics of criminal defense. I have not in those posts taken the view, and I do not believe, that criminal defense lawyers are bad human beings.  Some are, to the exact contrary, heroic, like those who showed up prosecutor Mike Nifong as a liberal fascist thug.  But, because the decided majority of defendants are factually guilty, there does seem to me to be an inherent  tension between the ultimate aim of defense work (to spring the client) and telling the  unvarnished truth (which is almost always going to have the opposite effect).  Not everyone thinks this tension is a problem.  I respectfully dissent.

What got to me today was this story about Mr. Nicey, a/k/a Aaron Schaffhausen, who took revenge on his ex-wife by slicing-and-dicing their three daughters, ages 11, 8 and 5.  Just to put a special touch on it, after doing the deed, he called his ex and said, "You can come home now because I killed the kids."  To make sure she'd have a vivid picture to remember when she got there, he arranged a colorful murder scene:  He slit each girl's throat from ear to ear.
Now so far, this might seem, in the surreal world of child murder, like just another story.  That's how it read, anyway, until this paragraph that grabbed my attention:

Schaffhausen's public defender, John Kucinski, spent months refusing to concede his client killed the girls. He fought hard in pretrial proceedings to exclude as much damaging evidence as possible, often unsuccessfully, ahead of last week's plea change.

Generally, in cases like this, where no normal person would doubt who did it, even the most die-hard defense lawyer will take a pass on absurd denials and move right along to the mental state defense.  But not this time.  Thus, I read the preceding paragraph thusly:

Schaffhausen's public defender, John Kucinski, spent months refusing to concede the obvious. He fought hard in pretrial proceedings to exclude as much of the truth as possible, often unsuccessfully, ahead of last week's decision to stop being deceitful about one thing and start being deceitful about the next thing.

The story observes that counsel has had little to say about what the newly-minted mental state defense will consist of, mentioning only this:

Kucinski offered a hint in pretrial proceedings last week, however, when he said the prosecution expert concluded that Schaffhausen suffers from a "major depressive order." He did not elaborate.

Yes, well, I can see why he didn't elaborate.  It's one thing when you've given yourself months to spin the "he was crazy" yarn after your client calculated the most gruesome way he could think of to butcher his daughters.  It's another to do it when you decided just last week that you'd need to gin something up from the syndrome department. 

Before the caterwauling starts, let me make clear that I understand the mantra that defense counsel is there as the "champion" of the Constitution.  (Indeed, "The Champion" is the title of the NACDL's self-congratulatory magazine).  But there is no Constitutional right to slit little girls' throats out of sheer hate and get away with it.   Still less is there a Constitutional right to get away with it through a bunch of concocted psychobabble.

Doing one's professional duty is one thing.  But it's another to get belligerently vain about it when questions are raised about why a person would want to devote a career to doing everything he can to help the Schaffhausens of this world.  There are plenty of better ways to defend the Constitution  --  not that there's any indication here that the Constitution is in jeopardy.  The danger to Schaffhausen does not, so far as anything the story suggests, stem from non-existent infringements on Constitutional rights.  It stems from the truth about his mind-numbing behavior.

OK, vent over.  We can now go back to accepting the workaday world where our profession snoozingly accepts this stuff as the way it is.






3 Comments

Bill, you should know as well as anyone that the press accounts of legal matters can't be trusted. I sincerely doubt that this story is the "full, unvarnished truth" about Kucinski's legal work in the case. But you are willing to believe the worst about him, because he's a defense lawyer.

I'll get "belligerently vain" about my professional duty every time you insult it. That duty is to defend the least defensible of all people. It's honorable and just. And the reason the profession accepts it is because your role-defined viewpoint belongs to only a tiny, wrongheaded minority; a small group who believe that you are the guardians of truth and that you know better than everyone else. Guess what?

"Bill, you should know as well as anyone that the press accounts of legal matters can't be trusted."

As a general matter, that is correct. But I'm not all that interested in generalities. I'm interested in specifics. The specific report is that defense counsel refused for weeks to acknowledge that Schlaffhausen did the deed, but now says, in effect, "Oh, OK, yeah, he did it, but he was depressed."

"I sincerely doubt that this story is the 'full, unvarnished truth' about Kucinski's legal work in the case."

Press stories cannot be, and don't purport to be, the "full" story of anything; you only have so many column inches. But if you know of something the story asserts that isn't so, I'm all ears. Do you?

"But you are willing to believe the worst about him, because he's a defense lawyer."

I guess you missed everything I said in my post coming right out of the gate.

"I'll get 'belligerently vain' about my professional duty every time you insult it."

Neither belligerence nor vanity is appealing, in you or anyone else. Nor is it insulting for me to say true things.

If nothing else, the best pose to strike in the defense of this man is ANYTHING but either belligerence or vanity.

"That duty is to defend the least defensible of all people."

But it's a self-chosen duty. Personally, I wouldn't get anywhere near this guy, nor would I let any member of my family near him. "Conscienceless" doesn't even begin to describe him. Neither does "dangerous," although that too is a not insignificant consideration.

"It's honorable and just."

It is honorable in the sense that a civilized country does not execute people, even those like this character, without giving them assistance in defending themselves. Whether what goes on in this case is "just" remains to be seen. Faking insanity is not my definition of "just" -- and faking it is what almost always goes on. Not for nothing do juries routinely see through insanity defenses.

Whether this guy is faking it we don't yet know for sure, but it doesn't look too good when the insanity claim crops up only now, long after the murders and only once the suppression motions have been tanked.

He got furious with his wife for leaving him so he did what would hurt her most. This is not that hard to figure out. It's R-E-V-E-N-G-E.

"And the reason the profession accepts it is because your role-defined viewpoint belongs to only a tiny, wrongheaded minority..."

No, the profession accepts it for the same reason it accepts most other things that go on in it: Habit. Plus it's good for business. The meter keeps running on a capital case for a long time.

"...a small group who believe that you are the guardians of truth and that you know better than everyone else."

It's not me, but the canons, that say the prosecutor is the guardian of truth. Indeed, when you're not getting mad at me, this is something you INSIST upon, usually while contrasting that role with the role of the defense.

As for knowing the truth better than anyone else -- do you think there's a reason juries (that is, twelve neutral strangers) overwhelmingly agree with the prosecution's version of events? Or is the jury also a bloodlustng horde driven by "role-definition?" (And what role would that be, by the way?

"Guess what?

My guess is that Schaffhausen (whose name and activities I notice you avoid mentioning) is going to get convicted over whatever razzle-dazzle his newly-acquired shrink can come up with, and then sentenced to death.

What's your guess?

I may sound a bit cold-hearted, but it seems pretty logical that if someone is prone to slitting their children's throat it is clear that person is dangerous to society regardless of whether he is insane, retarded, young or whatever.

I suppose somebody has to defend him, but I'm not sure what there is really to defend. There is no death penalty at stake here so it is life in prison or life in prison.

So I agree w/ Bill on this one, though I do not have a lot of faith in the jury system. The same juries that overwhelmingly agree with prosecutors (perhaps rightly) are the same juries that hand out ridiculous civil judgments to plaintiffs and I always wonder how conservatives reconcile that - i.e. federal courts good for class actions, but bad for habeaus corpus - I'm legitimately curious on that, so any enlightenment on this off topic comment would be great......

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