Hillary Clinton, as a young lawyer, accepted a court appointment to represent a man accused of raping a 12 year-old girl. He was eventually convicted, I believe, of a lesser charge of sexual battery on a person less than 14 years of age.
The question has arisen whether our view of Hillary should be better or worse because she took this case and how she behaved when she had it. Some (easily the majority of the reactions I've seen) think we should think better. The argument is that it is the best of our legal tradition that even the most despised defendant is entitled to a faithful and energetic ally as he faces the power of the state. The most frequently given example is John Adams' defense of British soldiers accused of brutality in the Boston Massacre.
The minority point of view is that Hillary's defense of the child molester was at best a display of callousness; a moral holiday from the consequences to the victim; a choice she did not need to make; and, in the course of the actual defense, a demonstration of the truth-optional attitude for which Hillary (and in my view, a big segment of criminal defense generally) has become known.
There are two among many articles, here and here, that discuss this episode in a way favorable to Hillary. Without for the moment going into my view of it (less favorable), I'm seeking readers' views. There are a number of questions here. A very, very non-exhaustive list is: Does or should the underlying truth about the client's behavior affect the lawyer's decision about how, and whether, to represent? Does or should a defense lawyer -- as an attorney, a citizen, or a human being -- have any moral obligation to the child victim? To potential (probable?) future victims if the client wins an erroneous acquittal and is thus emboldened? Should the lawyer undertake intentionally deceitful (even if not directly unethical) tactics in order to bring about such an acquittal? Or any acquittal? Is it a good or a bad thing to allow lawyers to have a "conscientious objection" exemption from a court appointment that makes them morally queasy? Or is conscientious objection limited to military duty?
I witnessed situations where a defense attorney has refused to represent an accused child molester. Some had an ironclad policy of not representing this class of defendants. Others made the determination on a case-by-case basis depending on the alleged facts.
I have never seen or heard of a judge ordering a defense attorney to represent a defendant that he/she declined to represent. I believe that compelling such conduct (i.e., requiring appointed defense counsel to represent a particular defendant against his/her wishes by threatening to remove them from the panel of appointed defense counsel) would raise a number of issues, including laying the groundwork for an ineffective assistance of counsel argument on appeal.
I have also witnessed situations where a prosecutor has refused to handle a case which he/she believed should not have been filed.
I have never seen or heard of a prosecutor being compelled to handle a case that he/she refused to handle. But, in some instances, that prosecutor's reputation (as a devoted member of the office) was tarnished by their refusal to handle a particular case. Their chances of promotion were also diminished because of their tainted reputation, although no one would ever admit that fact.
In short, in my experience, the refusal to defend or prosecute an accused is a moral/ethical decision best left to the sole discretion of the attorney and free of any influence from outside sources.
With respect to trial tactics: The ethical standards that apply to defense counsel and prosecutors are different.
While defense counsel are duty-bound to zealously represent their clients within the bounds of the rules of professional conduct, prosecutors are rightfully held to a higher standard. In addition to the rules of professional conduct, a prosecutors core obligation is to seek justice. Seeking justice allows prosecutors to strike hard blows, but not foul blows.
Notwithstanding these standards, I have witnessed situations where defense counsel and prosecutors have engaged in impermissible conduct. Is one more prone to engage in the such conduct? I don't believe you can generalize. Although many prosecutors like to do so and, therefore, percieve defense counsel as the unethical enemy defending an obviously guilty defendant. Many defense counsel are also guilty of the same generalizations, viewing prosecutors as persecutors willing to convict their clients by any means possible.
With respect to Hillary. One would have to get into the recesses of her mind to determine if she actually believed that her client was guilty and enjoyed getting him off. If she did, her conduct is, IMO, morally corrupt, notwithstanding her duty to zealous representation. But if she simply represented her client with vigor according to ethical standards and took no particular joy from the fact that he was acquitted (other than the pleasure that presumably comes from knowing that you did your best to represent the interests of your client within the bounds of the law), I think she was doing what the Constitution requires -- effectively representing the accused.
Thank you for this very thoughtful answer. I'm genuinely curious about this subject. I think it is vastly under-examined, and that the Hillary Clinton episode provides a teachable -- and for me, a learning -- moment.
I am not a Lawyer I do not know the detailed facts of the case. I suspect most other commenters don't either.
Whether what she did was moral or ethical she can only go by her own conscience. Certainly there is a large portion of the legal profession who believe every person deserves the best defense they can get and the every lawyer should do their best in every case within the bounds of the law and ethics.
I am less concerned about HRC defending a child molester, who was entitled to a defense, than her defense of her husbands sexual antics, which may have in some cases been a crime, while at the same time claiming to be a feminist and a champion of children.
"I'm seeking readers' views."
1> In 1975, Hillary Rodham (Clinton) defended T. A. Taylor, a 41-yr-old rapist, & attacked his 12-yr-old victim as “emotionally unstable”.
2> According to the affidavit by Hillary -- to order the 12-yr-old girl to undergo a psychiatric exam. “complainant [she] is engaging in fantasizing”.
3> Hillary also cited s psychology expert who claimed in reference to this child asserting rape: “children .. tend to exaggerate or .. romanticize sexual experiences”. ! !
4> Hillary writes in her book that ultimately her scientist/witness succeeded to
“cast doubt on the evidentiary value of .. blood & semen”.
5> Hillary negotiated a plea deal for the rapist down to ‘Unlawful fondling of a child under 14’ with 1 year in the county jail.
6> Hillary stated verbally:”Of course he claimed he didn’t.. I had him take a polygraph, which he passed, which forever destroyed my faith in polygraphs.”
7> In 2014, the Washington Free Beacon published the audio of an interview w/Hillary heard laughing 3x about the rape case.
8> Kathy Shelton, the victim, calls Hillary 'a Liar' and is still tormented today.
~ factcheck.org/2016/06/clintons-1975-rape-case/, dailymail.co.uk
Above ALL, this is why lawyers are despised in America.
Hillary Clinton knew he was guilty.
She bragged about getting him little punishment,
she knowingly impugned the TRUE bio-evidence,
and worst of all, Clinton more-than-suggested, actually arguing via affidavit,
that not only do young women fantasize about older men raping them, but
that THIS 12-yr-old FANTASIZED about this older man.
He was a drifter, who raped this 12-yr-old.
Listen to the tape, then weep for America.
~ http://www.factcheck.org/2016/06/clintons-1975-rape-case/
No one questions that every defendant, no matter how odious, is entitled to a defense lawyer. The interesting questions are, among others, whether Hillary was in any sense required to be that lawyer; whether the defense lawyer owes any moral duty to the victim (and if so, how it should be expressed); whether the lawyer may/is ethically required to engage in misleading though officially ethical conduct to secure an acquittal; whether it is proper/required/forbidden to be curious about/seriously investigate the client's factual guilt, and to adjust your own behavior as defense counsel based on what you find (or on what you intentionally look away from).
As I say, this is a partial list.
In my view, you are absolutely correct that the legal profession has such a low reputation because it's known to have a dicey, at best, relationship to the truth and truth-telling.
That is yet another question in the background here.
One way of putting the question is this: Should attorneys' professional ethics be adjusted to put more weight on the search for truth and less on client satisfaction?
In my view, taking on the defense of an odious perpetrator and mounting a vigorous defense is not a mark against any lawyer, whether required to take the case or not.
Questioning the credibility of the victim gets dicier, but I don't know enough about the case to know if that was in order. Sometimes it is necessary to get to the truth, and sometimes it is the most despicable character assassination.
Laughing about it is clearly beyond the pale.
Comments in the long letter by the Stanford rape victim concerning her treatment by defense counsel speak to the question you raise. I blogged about that case, and quoted the letter in part, here:
http://www.crimeandconsequences.com/crimblog/2016/06/the-viciousness-of-brock-turne.html
This kind of thing gets walked past in discussions of the need for an effective defense. I hope this thread will penetrate the silence; indeed, that's the main reason I started it.
Whether or not a defense attorney (or prosecutor for that matter) steps over the line from ethical truth-seeking towards unethical conduct (including cross-examination that is intended as character assassination) is in the eye of the beholder.
Ask 10 defense counsel if the cross-exam in the Stanford rape case was ethical, and I suspect you will get 10 affirmative responses. Pose the same question to 10 prosecutors, you will probably get just the opposite. But under our system of justice it is the trial judge who gets to call balls and strikes. And, in the end, it is the jury that will determine if the line has been crossed.
I don't think generalizations on this issue get us anywhere. Just like generalizing about all Muslims or all Mexicans does nothing productive, unless your goal is to fire up your base.
The question of whether the ethical line has been crossed must be made on a case-by-case basis. And it must be made by a neutral, objective, party or entity.
If there are any hard and fast rules, Bill, that you believe need to be incorporated into our justice system to better ensure that trials remain an ethical search for the truth, I would like to know what you propose?
I do not believe that deciding what is acceptable advocacy is just up for grabs, depending on who's making the decision. And if a neutral person, like the judge, is to make it, he too should be guided by substantive standards that have been thought through. The alternative is somewhere between arbitrariness and solipsism. Whatever those things might be, they aren't law.
The standard I suggest is that it should be unethical for an advocate to attempt to lead the tribunal to a conclusion he knows is false, or, in the exercise of due diligence, would have very strong reason to believe is false. And yes, this means the lawyer cannot be willfully blind to important facts about his case, in either a percipient or moral sense.
It should also be unethical for an advocate to behave toward an adverse witness in a manner designed to inflict pain on her for her decision to testify, as opposed to examining the testimony for truthfulness and reliability.
Some questions for you, now: Are you satisfied with our profession's low reputation for honesty? Do you think we should just accept it? If not, what reforms to bring about more truthfulness would you propose?
Given the objective strength of the vast majority of prosecutions, under your standard defense counsel would almost always be guilty of unethical conduct in defending their clients at trial. For example, do you believe that every member of OJ's dream team should (under your standard) be charged by the state bar with an ethics violation because, viewed objectively, they had "very strong reason to believe" he was guilty?
How are you ever going to prove, under your adverse witness standard, that it was the attorney's intent/design to inflict pain?
I am not particularly concerned about the alleged general perception that lawyers are scum. There is scum in every profession. I prefer to judge people on an individual basis based upon my personal contact with them. And I believe that most intelligent members of the public do the same.
I will concede that, when asked what I did for a living, I was proud to say that I was a prosecutor. 99% of the time the reaction would be: "Oh, you are one of the good guys." So, in my experience, not all lawyers are viewed by the public the same way when it comes to their reputation for honesty.
I also know a lot of defense attorneys who having been practicing for decades and whose reputation for honesty is superb. While there are others who are not looked upon as favorably by prosecutors or the public. Once again, it think it is very dangerous to generalize in this arena. Or to draft ethical standards premised upon preconceived ideas about an attorney's role in the criminal justice system.
"I prefer to judge people on an individual basis"
Then do so, listen to Hillary Clinton's unscripted interview,
review her affidavits, the information, and her motion for psychiatric
exam of the victim, to learn the facts.
You will thusly be able to make an informed assessment, rather than an
ivory-tower, esoteric generalization.
http://www.dailymail.co.uk/news/article-3729466/Child-rape-victim-comes-forward-time-40-years-call-Hillary-Clinton-liar-defended-rapist-smearing-blocking-evidence-callously-laughing-knew-guilty.html
I attempting to reply to the comment referring to the factcheck.org/2016/06/clintons-1975-rape-case/ article.
Reading the article it is not clear that the victim was not mentally disturbed possibly by prior abuse as the article mentions previous accusations. Whether this is accurate or not I cannot evaluate but is seems a reasonable thing for the defense to investigate.
The Statement about blood and semen evidence seems to refer to the assertion that the defense did not have an opportunity to independently examine that evidence since the entire sample was cut out of the victims garments. The expert in this statement seems to be a forensic expert different from the psychologist referred to in the first statement.
I am not an HRC supporter I am a supporter accuracy.
Snopes has a fairly exhaustive entry on the case, most of which is contrary to the "Hillary got a child rapist off and laughed about it" narrative:
http://www.snopes.com/hillary-clinton-freed-child-rapist-laughed-about-it/
It certainly also bears mentioning that this occurred in 1975, when there were no rape shield laws and societal views of rape and sexual abuse were, shall we say, significantly less enlightened.
I think Clinton's shoddy treatment of the young rape vctim was fairly typical of what was accepted in criminal courts at that time. I also think that such would never be tolerated today. So, by the standards of the day, Hillary was in the mainstream for criminal defense counsel.
How lawyers lived with their own conduct is another issue entirely, since I assume many lawyers, even in 1975, would never have resorted to these tactics.
If anyone thinks that deliberate abuse and active attempts to inconvenience victims and witnesses does not regularly occur in criminal court, I'd suggest that such disbelief is uninformed. Defense counsel who probably know or strongly suspect the client is guilty will nonetheless accuse victims and witnesses of stupidity, blindness, racial or sexual animus, outright dishonesty and more. That this no longer occurs frequently in sexual assault situations is only because rape victim advocates have forced the change. It didn't come from defense lawyers who somehow felt bad about it. In fact, I find that last concept - criminal defense guys feeling guilty about abusing a victim to win a case - to be risible.
Defense counsel have an obligation for force the state to prove the case. But there is, at least morally and at least to me, some space between testing the government's case, and dishonestly and cynically attacking victims and witnesses.
And, for instance, does "zealously representing the client" actually include getting on TV or being interviewed by the press, and making statements which are objectively false and misleading, but which represent a potential defense strategy and probably an attempt to influence the jury pool?
And, in the Clinton incident, Hillary did an interview which thankfully still exists, and she openly gloats about beating the state's case against a guilty defendant, which reflects well on her ablity, if not so much her common sense. This is talk we would rather expect in a private conversation among, say, lawyers with common interests and not done in public. She pretty clearly forgot there was a real, child victim when she was enjoying her own technical superiority.
JCC
paul --
1. My standard would prohibit intentional deceit. The alternative is to continue to allow it. Personally, I don't think this is a hard choice. My strong guess is that, when you're telling your teenagers about right and wrong, you don't think it's a hard choice either. I will stand to be corrected.
2. It's interesting that you choose the OJ Simpson case to illustrate how draconian my heightened standard of practice would be. In fact, as I think you'd say in any other context, the OJ case was a nauseating miscarriage of justice that (justifiably) reduced public respect for the system. A guilty, violent (and dangerous) man beat the rap because the jury got hoodwinked. To me, this is an example (not proof per se, but an example) of why the system needs changing toward more honesty and less game-playing.
3. "How are you ever going to prove, under your adverse witness standard, that it was the attorney's intent/design to inflict pain?"
The same way prosecutors routinely prove intent to commit murder when the defense is that it was an accident or a prank gone wrong. Prosecutors prove malicious intent hundreds of time every business day.
4. "I am not particularly concerned about the alleged general perception that lawyers are scum. There is scum in every profession."
"Scum" is your word, not one I used or care to use. There are lawyers who use slick, dissembling and misleading tactics to get guilty people put back on the street, and I think the canons should be changed to do more to discourage this.
As to generalizations: Generalizations are sometimes diversionary but often useful. The one I have in mind comes from this Gallup poll, that found that only 21% have a high degree of trust in lawyers.
When only one in five people thinks we're trustworthy, that is a big problem. And there is a reason for it: People think that, very frequently, in criminal defense in particular, we do misleading stuff. Unfortunately, they are correct. It's time for significant reforms away from genuflecting to the interests of the client, whatever they are, and toward respecting the need to be more honest.
http://www.gallup.com/poll/180260/americans-rate-nurses-highest-honesty-ethical-standards.aspx