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Manufactured Evidence, the Defense Bar's Reaction

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I noted here the case of prominent Washington, DC defense attorney Charles Daum, who recently received a 63-month prison sentence for faking evidence and suborning perjury.  I have looked a bit more into the case.  The reaction of members of the defense bar is revealing.

One would think the bar's reaction would be something like (this is my script):

We are appalled that a colleague would involve himself in a fraud on the court.  Public respect for the integrity of the criminal justice system cannot survive if any of its practitioners, prosecutors or defenders, engages in conduct of this sort.  It is a stain on the legal profession.  As members of an honorable calling, criminal defense, we unequivocally condemn it.

Is that what the reaction actually was?  Not exactly.  As reported in the Washington Post's Reporter's Notebook, the reaction of the mainstream bar was this (emphasis added):

[Some] lawyers read the indictment as a warning to aggressive defense lawyers. Betty M. Ballester, head of the Superior Court Trial Lawyers Association, said defense lawyers worry that prosecutors are "targeting high-profile attorneys and investigators."

But lawyers seem most troubled that unsatisfied clients might make charges against them in exchange for the government's favor. Gladys Weatherspoon...thinks White and Robertson [Daum's drug dealing clients] framed Daum for that reason. "Every defense attorney is one client away from being Mr. Daum," she said.


And there you have it.  The problem here is not that a defense lawyer was engaged in breathtaking dishonesty.  The problem is that thuggish prosecutors are "targeting"  --  obviously in order to intimidate  --  blameless, but "high-profile," defense lawyers. Either that or that defense lawyers are being set up by their clients to have something to offer those same rapacious prosecutors.


No wonder Daum refused to speak a word of regret at sentencing.  Why should he? His defense colleagues see nothing he should regret.  The only thing the public should be worried about are the prosecutors  --  the ones who decline to be bullied into giving a free pass to this sort of behavior.

37 Comments

A defense attorney who is dishonest is no better than a dishonest prosecutor.

The difference, however, is that prosecutors have enormous power that defense attorneys don't have. Prosecutors have this absolute immunity thing that protects them. In California, defense attorneys can be sued for malpractice but prosecutors can't be sued for malicious prosecution.

Some prosecutors have a bad reputation because too many of them will do things like appeal the reversal of a criminal case where the 9th Cir. overturned a murder conviction for Brady violations. There was no evidence against the woman other than an alleged unrecorded confession obtained by a corrupt Arizona police officer. Honest prosecutors should be up in arms that such a tragic thing happened on their watch, and the prosecutor should probably be be criminally prosecuted (unlikely, he's a prosecutor). But instead the Arizona attorney general appeals a rare defense win on habeas corpus.

I believe you repeat exactly the problem I highlighted: That instead of squarely and seriously discussing defense counsel's dishonesty, and the defense bar's amazing see-no-evil reaction to it, you toss out one sentence and promptly change the subject.

The blogosphere (and all manner of other places) is chock full of outrage about corrupt, or allegedly corrupt, prosecutors. (I do not view the government's considering whether to appeal an adverse decision corrupt, BTW). There ought to be balance in the coverage of ethical problems in the legal profession. This post provides a small amount.

Daniel,

What appeal are you referring to? The state won in state court and federal district court, and Milke is the appellant.

Here, I'll be outraged for you, Bill: lock the bastard up, he gives us a bad name.

Is that good enough?

I suspect that a goodly portion of the defense bar would share your reaction. The problem is that ALL of them should. But instead, we hear that the head of the Superior Court Trial Lawyers Division insisted the problem is that Daum was "targeted" -- not because Daum was pulling a fraud on the court, but because those nasty prosecutors are out to intimidate perfectly legitimate, but "high profile," defense lawyers.

This is not some kook, mind you. This is the head of the Trial Lawyers Association. A person who gets to that position simply has to be representative of the bar as a whole.

That's the problem here. Prosecutors are often lectured to be introspective -- which they should be, since you can ruin a person's life by indicting him. But I see no introspection at all in Ms. Ballester's remark. I see the opposite: A refusal to acknowledge a problem and a knee-jerk reaction to blame someone else (the someone else being your adversaries).

This is alarming in and of itself. But it's even worse because what it suggests is that defense lawyers have caught the disease that so infects their clients: The refusal to look inside, where the problem actually takes root, combined with a robotic inclination to blame people whose only "problem" is that they caught you at it.

Deccenyevolves: Daum deserves no sympathy. Lawyers who manufacture evidence deserve zealous prosecution and imprisonment. As a general matter, defense attorneys should be no more protective of him, than prosecutor's should be of the kind of extraordinary misconduct involved in Milke v. Ryan.

The failure to correct the misconduct involved in Milke at an earlier stage is revolting, and is the kind of failure of justice that shows why federal habeas review remains vitally important. It is beyond shocking that the prosecution prevailed anywhere in Milke, given the details of the information hidden by the prosecutor in the case, that Detective Saldate--whose testimony regarding Debra Milke's unrecorded alleged confession was the only evidence presented against Debra Milke-- had a "long history of lies and misconduct."

As Judge Kozinski suggested, Saldate's testimony regarding Milke's spontaneous and remarkably detailed confession during the thirty minutes they spent together was quite unbelievable. Saldate's history of egregious misconduct and the stonewalling that the State has engaged in, and still engages in, to keep that misconduct hidden was extraordinary. In Milke, a quite conservative panel (Kozinski, Bea and Farris) of the Ninth Circuit saw fit not merely to grant habeas relief under AEDPA's stringent standards, but to also direct copies of the opinion "to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil
Rights Division, for possible investigation into whether Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents."

The attorney who is getting charged, seems to have quite a bar discipline record of fairly serious stuff like practicing law without a license and trust account violations, so if he is considered a respected member the defense bar, that is pretty bad.

decencyevolves --

You do a slightly better job of the same manuever danielone tried: You briefly tip your hat to the subject of the entry, then promptly change the subject. And then it's off to the races.

One thing I have noticed about you is that you can become furious with cops (justifiably in this instance) but never with murderers. The only thing I have ever seen you say with any passion about the latter is how mistreated they were.

Bill, how dare you call out those who are far more enlightened than you are.

You have these guys dead to rights. I'll give a f'rinstance---"Judges" Reinhardt and Paez. These evil men decided to play fast and loose with the facts in a capital case on habeas. In so doing, they prolonged the suffering of the victim's family. Is anyone on the left outraged at the flouting of the rule of law and the cruel mockery of the victim's family, who, it must be remembered, DID NOT ASK TO BE A MURDER VICTIM'S FAMILY MEMBER. Nope. In fact, these moral paragons like this result. They can dress it up all they want and say that they oppose capital punishment--but supporting the twisting of the law like this to harm a victim's family is pure unadulterated evil. And it needs to be called out as such.

Decency evolves: Tribalism is a hazard in every profession and walk of life. Everyone has to guard against the natural tendency to go easier on people who are on "their side" and recognize how much improper and illegal actions damage in merely their cause, but the interests of justice itself. So I am with you there. Like the authors of this blog, I tend to focus on the arguments and causes that have motivated me in choosing and pursuing my career and I don't apologize for that. It is important for the proper functioning of the criminal justice system that there are people who choose to do criminal defense work (Bill and Federalist) and I have little tolerance for those who decry that function.

Bill, I agree that all defense attorneys -- hell, all *attorneys* -- should share my reaction.

I think all attorneys, prosecutors included, should be introspective, should watch their colleagues, and should enforce strong ethical behavior.

Your reaction, though, is pure victimology. You're claiming that defense attorneys aren't as outraged as you are by misbehavior on their side, but are only selectively outraged by misbehavior on the other side. That's a BS argumentative tactic that has no legs, and it fits squarely within the criticism I leveled at you on SL&P -- you troll. You post things to get emotional responses. Why? You've got the better side on most arguments, and furthermore all defense attorneys know that the vast majority of our clients are guilty, and most of them are bad people. So tell me something I *don't* know!

I'll tell you why defense attorneys get so bent out of shape about hanging judges, corrupt cops and prosecutors, even though it's obvious--the best of us can't stand hypocrisy. We know that people are fallible, and we love the schadenfreude when those who claim to be supra-honorable and "doing justice" and lecture us about "the rule of law" and talk about how good they are turn out to be just as fallible as everybody else. That's it. But of course, you knew that.

Why am I a defense attorney? Easy answer: criminal defense attorneys represent bad people, but when we see them--after they've been arrested, sometimes after they've been convicted--they're often humbled, and they're bad people acting at their best. By contrast, domestic relations lawyers (something I did a little of in private practice) represent good people at their absolute worst. I'll take the former.

Prosecutors, at their best, represent the state and the victims of my clients. They seek to protect the state and obtain justice for the victims. And that is to be admired and honored. But every defense attorney has come across the jackass prosecutor and/or judge who claims to be doing that and is instead boosting his own ego and punishing for his own gratification. And we're supposed to sit still and eat that? Is that what you want? Really?

You were a good prosecutor, I'm told--and I have no doubt that's true. And a good prosecutor can do far more good for a criminal defendant than a good defense attorney. But the righteous asshole prosecutor deserves to be mocked, particularly when he breaks his own rules.

"It is important for the proper functioning of the criminal justice system that there are people who choose to do criminal defense work (Bill and Federalist) and I have little tolerance for those who decry that function."

1. I think federalist has filed amicus briefs supporting a very few defendants, but he is not a criminal defense lawyer (although he knows an amazing amount of criminal law). I also am not a defense lawyer. If I said something that made you think otherwise, I apologize.

2. One's attitude toward the defense function ought to depend specifically on what that function entails and what its aims are on the ground (as opposed to lofty and very generalized statements about its aims).

The on-the-ground aims of the defense lawyer are to minimize or, if possible, eliminate punishment (i.e., get an acquittal) for a person who is almost always guilty of what he's charged with and may be, in addition -- and as jaymacke acknowledges in the comment right after yours -- a pretty bad, and not infreqently dangerous, guy.

And how can you win an acquittal for a factually guilty defendant (which is almost all of them)?

Well, it can't be by putting on, or allowing to be put on, a straightforward rendition of the truth, since that is the fast path to a conviction.

So is has to be something other than a straightforward rendition of the truth. And right there is where I start to have problems. Am I supposed to be happy with manuevering to get to something other than the truth?

And the problems don't get alleviated when I see what tactics get employed to make sure a straightforward rendition of the truth never gets to the jury. The least objectionable ones are delay, a blizzard of losing procedural motions to gum things up, and trying to sweettalk some inexperienced or lazy prosecutor into a quick-and-dirty plea deal that omits much or most of the defendant's atrocious behavior and/or proposes a low sentencing recommendation. The worst of it is what we see from Mr. Daum -- manufacturing evidence and sponsoring perjury. (Well, no, there is one thing worse, i.e., witness assassination, which is anything but unheard of with drug gangs in at least LA, Chicago and Washington, DC).

The problem -- and I know I'll get in trouble for saying this -- is that, in terms of their GOAL (to get an acquittal) -- these things differ in degree, not in kind. Catagorically, they share the same characteristic: They are mechanisms for avoiding a straightforward account of what happened from ever getting to court.

To the extent that is the nitty-gritty, day-by-day, on-the-ground function of criminal defense, yes, I do decry it.

Who is the champion of truth in the courtroom?

Is it always the prosecutor?

Bill, if you think it is, then you're not only wrong, you're silly. And you apparently don't believe in the adversary system. "The truth" is a hell of a lot murkier than you appear to think it is. And if "the truth" is obvious and ironclad, well, that's what pleas are for. And how many cases get pled out? Oh yeah, almost all of them!

Do you think that we do this because we're bad people? Because we want the guilty to go free and the innocent to suffer? Are you that role-blinded?

It would move the ball better if you were to respond to what I actually said, rather than to positions you compose and then want to velco to me.

This is what you said: "Who is the champion of truth in the courtroom? Is it always the prosecutor? Bill, if you think it is, then you're not only wrong, you're silly."

This is what I actually said: "... how can you win an acquittal for a factually guilty defendant (which is almost all of them)? Well, it can't be by putting on, or allowing to be put on, a straightforward rendition of the truth, since that is the fast path to a conviction. So is has to be something other than a straightforward rendition of the truth. And right there is where I start to have problems. Am I supposed to be happy with manuevering to get to something other than the truth?"

As I have previously made clear, there are rare occasions when the defense lawyer is the spokesman for truth, and the prosecutor is a thug. I gave the Mike Nifong example.

Now if you would like to crack at responding to what I ACTUALLY said, I'll be paying attention.

Honestly, I can't see the difference between what you actually said and my underlying point. You took one quote from my response, so I'll give you another:

"And you apparently don't believe in the adversary system. "The truth" is a hell of a lot murkier than you appear to think it is. And if "the truth" is obvious and ironclad, well, that's what pleas are for. And how many cases get pled out? Oh yeah, almost all of them!

Do you think that we do this because we're bad people? Because we want the guilty to go free and the innocent to suffer? Are you that role-blinded?"

Decencyevolves: Bill, I have seen remarkable obfuscation in my day from prosecutors in cases where they wanted death sentences for individuals with extreme psychotic illness or intellectual disability and I know what its like to tsk tsk, in my head at least, with the best of them. For all of that, I don't begrudge the system for how it works, or even the zealous advocates in it for doing what we have decided is necessary for the system to function properly. An inquisitorial system may suit you better. It's certainly popular in other countries, but I prefer the one we have to France for instance. I thought conservatives disdained French things (heck, I even recall freedomn fries) but perhaps you are different.

As a general matter, the guilty are convicted and the innocent are acquitted. We have a system, imperfect though it may be but nevertheless vitally important, for correcting important malfunctions and I'm glad and proud to be part of it. I have little patience for lawyers especially who begrudge me that. I moved into capital post-conviction work from civil work on behalf of indigent clients at the very strong urging of an attorney I clerked with, a career US Attorney. I admire him deeply and the work he does and he feels the same about me. Present and former prosecutors who view ethical but committed defense attorneys with little but disdain just make me shake my head.

"Honestly, I can't see the difference between what you actually said and my underlying point."

Then it would be just as easy to quote me directly. I select my words carefully (as I'm sure you do, being an appellate specialist).

So let me try again:

"... how can you win an acquittal for a factually guilty defendant (which is almost all of them)? Well, it can't be by putting on, or allowing to be put on, a straightforward rendition of the truth, since that is the fast path to a conviction."

Do you disagree with that?

"So is has to be something other than a straightforward rendition of the truth."

Do you disagree with that?

Now I'll answer your points, quoting you verbatim:

"And you apparently don't believe in the adversary system."

Hardly. I just want the adversaries to be fully honest, straighforward and forthcoming. Something wrong with that? (If a point be made of it, I not only approve of the adversary system, I made a living in it).

"'The truth' is a hell of a lot murkier than you appear to think it is."

Depends entirely on the case and the nature of the particular truth we're talking about. Whether the defendant had a brick of cocaine in his glove compartment is easy to know. Whether he's too mentally defective to distinguish right from wrong is, in a very few cases, harder to know, sure. But there are zillions of cases where it's easy to know, and mental state defenses are usually pure psychobabble hokum. The real reason the defense tries them is that it's the only port in a storm, the storm being that the defendant is dead to rights on the actus component of the case, so he has to flee to the evanescent mental element.

"And if 'the truth' is obvious and ironclad, well, that's what pleas are for. And how many cases get pled out? Oh yeah, almost all of them!"

I'm very glad to see you say this, and I appreciate it. The usual mantra I hear on SL&P is that cases plead because the prosecutor is an extortion artist, and is in a conspiracy with the judge to sentence the defendant to 5000 years if he doesn't take the plea.

"Do you think that we do this because we're bad people?"

Some defense lawyers are bad people, yes. Lynne Stewart comes to mind. She was, to my way of thinking, a traitor, an ally of deadly enemies of the United States, and a blatantly unrepentant person (which is one of the main reasons the Second Circuit vacated her shockingly dismissive sentence the first time around).

Most defense lawyers are good people. Our friend John comes to mind. Many of my friends, and my colleagues on the ExComm of the Federalist Society's Criminal Law Practice Group, are defense lawyers. The heroes who undid Mike Nifong are defense lawyers.

"Because we want the guilty to go free and the innocent to suffer?"

A major problem I have with defense work is that defense counsel are intentionally, indeed defiantly, oblivious to who's guilty and who's innocent, and view themselves as equally dedicated to getting both types off. Indeed, this is a POINT OF PRIDE with the defense bar.

It's not exactly that the "want" the guilty to go free; it's that if this happens, it's dismissed as "the way the system works." (This theory tends to get immediately shelved when I point out that the death penalty is also "the way the system works.").

The acquittal of a guilty person is a miscarriage of justice just as much as the conviction of an innocent one (and can disastrous consequences as well).

"Are you that role-blinded?"

This might sound conceited, but it's the correct answer to your question: Blinded people do not have 18 years of success in a federal court of appeals. As I'll bet you know as well as I do, one of the keys to successful appellate lawyering is to be able to see (thus convincingly to rebut) the strong points in the other side's argument. This requires, not blindness, but the opposite of blindness.


Bill, these guys give away the game. Decencyevolves sloughs off his obvious double-standardism with a huff about what motivates him. And that points up the problem--someone like Judge Reinhardt, a man who thumbed his nose at his judicial oath, should be pilloried by all. But deep down, most defense attorneys are completely cool with Reinhardt's disgusting revictimization of innocent people because they like the result. It's just that they won't say so. So decencyevolves, that's why Bill and I hammer people like you. Someone in here talked about how defense counsel hates hypocrisy---well, what about the hypocrisy that is inherent in all the awards handed out to Judge Reinhardt and his hack sidekick, Judge Paez? And what about the hypocrisy inherent in your quiet support of these loathesome jurists. (And if you take issue with anything I said here, please explain how doctoring the record is ok when done in favor of a capital murderer.)

I have never defended prosecutorial misconduct, cops lying or any other nonsense that is odious to a free people. And I never will. So don't project your "tribalism" onto me. I have, on many occasions, stepped onto your turf to debate something done "on my side." Tell you what--I'll even give you an easy one---"Killer" Keller. I am happy to defend her. Care to take me up?

Decencyevolves: Federalist, you believe that I am an extremist whose views and the judges I support are loathsome, and I am sure I return the favor. One of us may be right, one of us may be wrong, or we both may be wrong, but I don't doubt the sincerity of your views or mine. Ilya Somin had an interesting piece on Volokh Conspiracy about the roots of Senate obstruction of judicial nominees that made good sense on that point: http://www.volokh.com/2013/03/19/judicial-nominations-and-competing-views-of-the-constitutional-mainstream/ To be sure, its easier to debate the merits of particular decisions than particular judges, given how much they write and how involved their opinions are. There are certainly many that I find troubling in all sorts of arenas, not just criminal ones, but I'm not much interested in picking through the galaxy of decisions out there to have a debate with you over one of them. Generally, even with a particular case, I need to know a great deal to say something meaningful, so there is little point in an abstract discussion about the merits of particular judges. Saying Steven Reinhardt "ugghh", or Richard Paez "bleech", or Sharon Keller "yeech", or Edith Jones "retch" seems like a poor expenditure of our time.

To decencyevolves --

You say, in response to me, "I don't begrudge the system for how it works, or even the zealous advocates in it for doing what we have decided is necessary for the system to function properly."

I have a question about what you mean by the cryptic phrase, "...doing what we have decided is necessary for the system to function properly."

Specifically, do you mean that it is (1) morally acceptable, or (2) acceptable in any other sense, for a defense lawyer to conduct a knowingly misleading, although not directly perjurious, defense?

In answering, do any of the following make any difference to you:
(a) whether the client is guilty
(b) whether he is violent or otherwise dangerous
(c) whether he has a record of doing the same thing he's on trial for
(d) whether he is likely to do it again
(e) whether he has told you he intends to do it again.

Discussions like this have a tendency to take off into the stratosphere of gauzily stated High Principle. I want to see how this works getting down to nitty-gritty specifics.

I look forward to your response. If jaymacke wants to chime in as well, so much the better.

Later on in that statement I talk about committed and ethical defense counsel, and the commitment to ethical representation within the bounds of law is critical for prosecutors and defense counsel alike. As for your questions, just as oh lets say a securities lawyer would behave, I wouldn't tell my employer that inmates who I represent must reach a certain level of savoriness before I will represent them in a challenge to their conviction and sentence. You don't adjudicate the guilt of your clients I imagine and neither do I. Dangerous and violent inmates need representation just as much as Jamie Dimon or Lloyd Blankfein or Michael Milken or Bernie Madoff, probably more so and they have far slimmer options; this is true whatever you think of their ethics, the harm they have caused or whether they are or aren't good people. That takes care of everything down to whether your client has told you he is going to commit criminal acts in the future; a nightmare scenario for any lawyer which will prompt consultation with colleagues and employers, ethics experts, possibly the state bar, legal research, may require withdrawal as counsel and could trigger official reporting requirements. To say I am glad I haven't encountered that maelstrom understates it by a lot.

I just have a devil of a time getting a yes-or-no answer. So let me try in a slightly different way. I would ask that you say "yes" or "no" to each question, with the proviso that you can, after that, give as much of an explanation as you care to.

1. Is it morally acceptable knowingly to mislead the jury?

2. Is it morally acceptable knowingly to mislead people in other aspects of commercial or civic life, such as knowingly misleading customers or lenders?

No one is asking you to "adjudicate" (your word) the guilt of your clients. Since you're not a judge, you can't "adjudicate" anything. But in many instnnces, you will know whether your client did it (often because he tells you, sometimes because the evidence is conclusive). Given that,

3. Would you put on a knowingly misleading defense for a guilty client?

In addition, I said nothing about the "savoriness" of the client. The question was more relevant and specific than that, so,

4. Would you put on a knowingly misleading defense for a violent or dangerous client?

You say, "Dangerous and violent inmates need representation just as much as Jamie Dimon or Lloyd Blankfein or Michael Milken or Bernie Madoff, probably more so and they have far slimmer options; this is true whatever you think of their ethics, the harm they have caused or whether they are or aren't good people."

Again, the question is not whether they need a defense. We all agree they are entitled to a defense. The questions I'm trying to get you to answer go to THE PERMISSIBLE MORAL LIMITS of the defense they can get. Therefore,

5. Would you put on a knowingly misleading defense for a client when a reasonable person would be convinced the client would repeat his crime (based, say, on the fact that he's been doing it for the last ten years)?

As to the last question about the client who has told you he's going to do it again, you attempt to pry yourself out by making it somebody else's problem. But that won't do, first because it's just the weenie way out, and, second and more importantly, for the reason you yourself correctly insist upon: Even the nastiest character out there is entitled to a defense. Thus, the question is,

6. Would you, or should any other lawyer, knowingly put on a misleading defense when the client has told you or the other lawyer he intends to do it again.

I respectfully ask that you not duck-and-weave, and that you give yes-or-no answers to each question -- again, with the understaning that you can append any and all explanation you care to thereafter.

Thank you.

Still a fan of the inquisitorial system, BIll? As I understand the basics of the adversary system and my role in it, I'm going to make the best argument I've got to a judge about why my client's conviction and sentence is unconstitutional, competent trial counsel will make the best argument he's got at trial as to why the government hasn't proved it's case, and the government is going to do the same in reverse. My case will be as strong or as weak as it is. If it's weak, I will probably lose, which is as it should be. If it's strong, it will probably succeed, which is as it should be.

I'm not going to misquote documents or witnesses or the law and I'm going to make arguments that I think are supportable and that I hope will prevail. The judge may or may not find my witnesses or arguments credible, but I'll do my best to find evidence that is as strong and credible as possible. I don't think that's misleading, but if you disagree with me, I don't really care. If that's not specific enough an answer for you, it's the best I, or any attorney, can honestly give you. It's not ducking and weaving, it's just the practice of law.

Finally, if you can't put on a strong defense for a dangerous client, you have no business representing him. Putting on a weak defense in the hope that you tank him is slimy and unethical practice and individuals who knowingly do so should be disbarred.

"Still a fan of the inquisitorial system, BIll?"

I'm still a fan of an adversarial system with fully honest and straightforward adversaries.

"As I understand the basics of the adversary system and my role in it, I'm going to make the best argument I've got..."

The question -- the one you elide -- is what specifically the word "best" means. What I'm trying to get at, for example, is understanding why, if it's in the client's interest for you to mislead, it's not OK to lie directly (as long as it's not under oath), since misleading is both the moral, and often the functional, equivalent of lying. Could you please give me some help with that?

"I'm not going to misquote documents or witnesses..."

But will you paraphrase or characterize them in a way that is, while not patently false, distorted and misleading?

"I'll do my best to find evidence that is as strong and credible as possible."

Evidence can be credible without being true. If you have evidence that's credible, but you know it's false -- or if not directly false, paints a picture you know is false -- is it OK to use such evidence?

"I don't think that's misleading, but if you disagree with me, I don't really care."

Why get huffy about it? That I'm trying to get specifics doesn't make me a bad guy in any fashion. This is a very important subject.

"If that's not specific enough an answer for you, it's the best I, or any attorney, can honestly give you."

With all respect, I think the reason you won't give specific, or yes-or-no answers, even with a chance to explain them as much as you care to, is not lack of ability. I think it's that a yes or no answer would tend to support the widely held public view that lawyers are sleazy; that criminal defense lawyers are particularly so; and that they are not to be trusted because they feel like they can say and do whatever advances their cause so long as it's not flatly illegal and they have their fingers crossed behind their back.

Do you think that public perception has no basis?

"Finally, if you can't put on a strong defense for a dangerous client, you have no business representing him. Putting on a weak defense in the hope that you tank him is slimy and unethical practice and individuals who knowingly do so should be disbarred."

But my quesitons did not go to "strong" or "weak." They went to honest, straightforward and candid. Should I not ask questions like that?

decency---pretty weak dodge. You were apparently cool with the attack on the Arizona AG, but you don't want to defend your buddies on the Ninth Circuit. Their conduct is, of course, indefensible. but since it was in the service of a capital murderer, I am sure you were cool with it.

You have no business wagging your finger at anyone.

Decency evolves: So a witness against my client has obvious weaknesses that I could point out to the jury. I am supposed to decide as the attorney, "I think he's telling the truth" and not point out those weaknesses to the jury so as to let them decide. I make a judgment on whether I find each witness credible. If it's an adverse witness and I decide they are telling the truth, I subject them to no cross examination or better yet, congratulate them for their truthfulness in front of the jury. Why even have a jury? I'll make the judgments myself, and perhaps tell the jury I believe my client is guilty. That sounds like a splendidly straightforward and candid adversarial system. The standards for effective assistance of counsel are a bunch of bunk. I don't need to subject the prosecution's case to the crucible of adversarial testing if I decide my client is guilty. Where did the Supreme Court get such a ludicrous notion? Hmmm. On second thought, I don't really like your system. I think the judges and jurors should be making those decisions, not me. And if you were accused of a crime, guilty or innocent, I think you would agree.

I want to add here a comment federalist made on a more recent thread:

"Bill, the ethics of the defense bar can be shown in one case. Remember, David Westerfield? He is Danielle Van Dam's killer. His defense attorneys, knowing full well he did it (because he had told them where her body was) argued to the jury that one of the Van Dams' friends could have killed the little girl. This was an out and out lie, since there was no possible way that could have been true, and they knew it.

"Defense attorneys argued this was ethical conduct. It's not. And it is disgusting that they weren't disbarred."

Decency evolves: That said, effective lawyers present evidence that is consistent with the facts and law as they know and understand them, in as sympathetic a context to their client as they can. Trying to pull a fast one on a jury, the court or opposing counsel is lunacy. But you point out strengths in your clients case, minimize weaknesses where you can, and show every place where your opponents case is not as strong as it might be. You may think that is misleading, but you still haven't convinced me. I don't mischaracterize law or evidence and nothing I said suggests I do. I'm not sure we disagree, and at this level of generality, its hard to know for sure. Perhaps we are just misunderstanding each other.

Your central premise here is little more than soft-core solipsism -- that defense counsel can't really ever know whether a witness is telling the truth. Having practiced law for a good long time, I can tell you that is incorrect. I also suspect you know it is often incorrect. Indeed, frequently it's absurd, and I suspect you know that too.

Sure, there are times when defense counsel won't know. In such instances, of course counsel can put forth credible evidence supportive of the client. No one doubts that. But there are other times when he knows full well. Federalist, in his comment I just repeated, shows one such instance.

So let me take a cue from federalist's example.

Do you think it is moral to try to convince the jury that X, who is innocent, did the crime, when you know full well (from your client's corroborated information) that X did NOT do the crime.

Is that moral?

Perhaps Westerfield's attorneys should have sat mute during his trial. They knew he was guilty after all. Was any other course consistent with your views of candor and straightforwardness, or Federalists for that matter? It's late, and I think we are far from agreement. I trust the adversary system to sort it out and don't disparage the process or actors for trying to play their part. You would prefer the adoption of ethical standards endorsed by you and federalist but no other jurisdiction. I don't think I'll be signing on with y'all any time soon.

I agree it's late, and we can continue in the bye-and-bye. So I will say only a little now in response to you.

"Perhaps Westerfield's attorneys should have sat mute during his trial."

It's a false choice to say that they had to either (1) stand mute during the trial, or (2) aggressively and at length declare that an innocent person was the real culprit. Defense counsel are more resourceful than that.

You say that you don't "disparage the process or actors for trying to play their part." But the WHOLE QUESTION here is defining the moral limits of "their part." We all seem to agree that outright lying is outside those limits (I mean, we do agree on that, don't we?).

But what about misleading? As I have noted, misleading is the moral equivalent, and often the functional equivalent, of lying. So if, as you seem to agree, outright lying is impermissible, why isn't intentional misleading also impermissible?

Or is outright lying permissilbe after all? At this point, I'm not sure of your view on that.

Decency evolves: It is an interesting question and deserves a less glib answer than I gave. I'm far more familiar with cases where clients have confessed to everyone, or to no one, not to just counsel at any rate. In determining the limits if ethical advocacy to clients who have confessed their guilt to counsel alone, as post conviction or trial counsel, you would want to research precedents and texts on the subject, consult with other counsel, and figure it out that way. Loudly declaring that another person did it seems folly. Implying that another person had motive and opportunity might be permissible or even advisable, but I'd want to know what ethicists and judges and numerous colleagues more experienced than me had to say on the subject, and why. I have a duty to let the jury know of reasons that exist to doubt my clients guilt, otherwise what am I there for. I can imagine however, that I might not be able to do so effectively or ethically based on what I know, which might necessitate my withdrawal from the case. Where your client hasn't made such frank and confidential admissions, the situation is quite different. Goodnight.

"... how can you win an acquittal for a factually guilty defendant (which is almost all of them)? Well, it can't be by putting on, or allowing to be put on, a straightforward rendition of the truth, since that is the fast path to a conviction."

The reason I keep going back on this issue of role and the adversary system is that I think this question misunderstands my function as a defense attorney. Unless I can prove my client innocent, I admit that I'm rarely going to put on a straightforward rendition of the truth.

But your question presumes that the State *is* going to put on a straightforward rendition of the truth--and while perhaps you did that (in trials and in appeals, to the extent possible), there are an awful lot of prosecutors who don't. I've faced them both at the trial level and on appeal.

And more importantly, the adversary system doesn't presume that *either* side will put on a straightforward version of the truth -- that's what trials are for, after all.

I'm incredibly taxed right now, so I may not be able to follow up for a few days. But this has, thus far, been an interesting and useful discussion, I think.

Decencyevolves: As someone who has represented civil plaintiffs and defendants and habeas petitioners, I have noticed a pattern to all the litigation I have seen. Generally, for the party prosecuting the action, which now is me as someone representing habeas petitioners, I insist that the claims I'm pressing hardest on are simple and straightforward and I should win. As the person who bears the burden of proof, that's hardly surprising. For the defendant or respondent resisting my claims, in my cases the Warden, the case is often claimed to be hopelessly complex, so I haven't borne my burden and I should lose. The straightforwardness Bill advocates favors those facing the burden of proof: plaintiffs, petitioners and the prosecution. In a strange way, as the attorney bearing the burden of proof, I can empathize with someone who has seen what he sees as obfuscation coming from the other side. I've felt that way myself a lot. Stepping back though, I don't think it's the job of the system to put its thumb on either side of the scale. It's up to the parties to make the best arguments they can, for the attorneys to point out weaknesses in their opponents' arguments and for judges and juries to decide. That's why the arguments of Bill and federalist rankle; they seem to reflect a hostility to the adversary system.

Decency, what have I said about the adversary system? In any event, the bottom line is, and you don't dispute it, is that the defense counsel arguments in the Danielle Van Dam case were lies. When you say that the parents' friends "could" have done it when you know damned well that they didn't, by any definition of dishonesty, that is dishonest. Why don't we start by getting that right? Now if you have some reason that defense counsel should be allowed to lie like that, then let's hear it. And it's not putting one's thumb on the scale to require attorneys not to lie.

As for the other issue--I notice that you simply ignore it. But the bottom line is that you're cool with Reinhardt's dishonesty because it serves the cause. Whatever. Just don't wag your finger at me or anyone else "on my side." You will countenance anything if you're cool with the result.

Decencyevolves: Federalist. I hadn't studied or thought about the Westerfield case before you brought it up, but I have now read a bit in response to this thread. On further examination, I find Terri Towery's thoughtful commentary on this topic considerably more persuasive than the emotional reaction of either you, Bill Otis to the extent he concurs with it, or Bill O'Reilly, who apparently popularized the outrage at trial counsel's handling og the case:

http://www.lacba.org/showpage.cfm?pageid=2740

As she notes:

“Despite its simplistic moral appeal, O’Reilly’s argument is very dangerous to our system of justice. Stripped of rhetoric (and volume) the argument is this: if criminal defense counsel believes his or her client to be guilty, the case is over. At that point, counsel may not “mislead” the judge or jury by vigorous cross-examination of prosecution witnesses, or by arguing “false” alternative interpretations of the evidence. Counsel is morally and ethically bound not to dispute evidence and theories he or she “knows” to be true. The argument even hints that counsel should disclose information obtained in confidence from the client if such disclosure is for the greater good . . . . What exactly were Westerfield’s defense attorneys supposed to do? Refuse to negotiate a plea bargain that would save their client’s life? Disclose the confidential information obtained from their client, thereby potentially further incriminating him? Declare a conflict-of-interest and get off of the case? If the latter, how could Westerfield ever have legal representation without being required to lie to his attorneys? And given the failure of the plea negotiations, what should the attorneys have done at trial? Declined to cross-examine the state’s witnesses? Refused to raise and argue reasonable inferences from the evidence? Concede that the evidence proved their client to be guilty beyond a reasonable doubt? Of course not. His attorneys were obliged to do their damnedest to obtain the best result possible for him. That is precisely what they did. They sought an advantageous settlement for him. They did not (and could not) present any false evidence or perjured testimony at the trial. They did challenge the government’s proof and argued that it had failed to meet its burden. They did argue reasonable inferences that could be drawn from the evidence, including the possibility that someone other than their client committed the murder. Not only was their conduct ethical, it was both ethically and constitutionally required of them.”

That reasoning is pretty sound to me.

As to your desire to smear Judges Reinhardt and Paez without mentioning a single specific decision with which you disagree, what am I supposed to do with that precisely? We could go tit for tat I suppose. I could discuss the merits of Judge Barksdale's notorious decision in Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000), happily overturned by a divided en banc panel in Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc), in which she and Judge Edith Jones concluded that the mere fact that your lawyer slept repeatedly through portions of your trial is not a sound basis for giving you a new one. We could contrast that with other decisions by judges you dislike that you disagree with. But where would that get us exactly?

Decencyevolves. Finally, as Towery also notes, what we as defense attorneys know about our client's case is often less than you might think. How often has a defendant or prisoner offered to lead the police to a body, only to have none appear? As she noted:

“Criminal defense attorneys are never the judges of the facts. Indeed, they are not even always right in their assumptions of what the facts are. I would venture to guess that more than one person convicted of a crime and later exonerated by DNA evidence had confessed to defense counsel. (We know, for example, that many such people have falsely confessed to law enforcement.) I am a capital defense attorney. No matter how strongly I believe that I “know” what happened, my job is not to decide guilt or innocence. My job is to vigorously defend my clients, to make sure that their constitutional rights are scrupulously honored, to require the government to prove its cases beyond a reasonable doubt, and to maintain the confidences of my clients at all peril to myself. And I intend to continue doing my job properly and ethically, O’Reilly’s opinions notwithstanding.”

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