TheAgitator.com
The Role of the Criminal Defense Attorney
Monday, February 18th, 2008This comment over at the Volokh site I think is worth highlighting.
You often hear criminal defense attorneys criticized for representing clients they know are guilty. But that’s not the way to look at it. Even when they suspect their clients’ guilt, a defense attorney is still obligated to put up a vigorous check on the power of the state. If the state is going to take someone’s freedom away, we should always make sure they’re doing so in a manner that’s fair, just, and consistent with the Constitution.
It’s not about letting guilty people off. It’s about making the state do its job properly.
Yeah it seemingly sucks when you really know this person committed a real crime to see them walk, but attorney’s pride themselves on their chess games in public. I imagine now and again one would miss a move intentionally.
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In other news, this is the way PD’s should act when they phuk up!
http://www.sptimes.com/2008/02/16/Hillsborough/Deputy_in_video_accus.shtml
An update to the wheelchair dumping.
“Dumping a man from a wheelchair brings felony charges.”
The way you’ve characterized a defense attorney’s job is to assist the state in properly convicting people of crimes. That’s wrong as a conceptual matter, as this is an antagonistic system we’ve set up, and wrong from a libertarian, power-limiting perspective. I don’t want to help the state punish people better; I want them to do it less often.
It would be nice if juries decided what “real crimes” were in addition to determining the guilt of the defendant (such as “you’re definitely guilty of having precription medication in ‘other than its original container’ because you put it in a ‘day-of-the-week’ holder but that’s a stupid law, so we’ll find you not guilty”).
Defending would be so much more fun that way.
I don’t know about that. I agree that from a philosophical point of view, even the guilty deserve representation, but I can’t respect the lawyers who knowingly lie to the court, saying their client is not guilty, when they know full well that he is the killer.
http://www.ethicsscoreboard.com/list/defense.html
From the link above, “It doesn’t produce satisfaction or joy when defense attorneys see their guilty criminal clients go free, guaranteed by the Constitutional prohibition against “double jeopardy” never to have to suffer punishment for terrible crimes. But unless defense attorneys do their jobs well enough that this can happen when the prosecution or jury don’t perform theirs, democracy dies.”
We can already. it’s called Jury Nullification.
PS: Don’t mention that you know about it during voir dire or you’ll get tossed out so fast, the bailiff will be chasing you with a taser.
Jury nullification is not quite enough. The prosecution should have to prove not only that the law was violated, but also that some harm was done.
My daughter is a defense attorney both domestically (federal and state) and internationally(Afghanistan and Nepal), so I’ve given this some thought. My personal opinion is this:
A defense attorney should do whatever it takes (legally) to get his client aquitted (or get the least possible sentence). I sure as hell don’t want my defense attorney declaring me guilty in his own mind (regardless of how certain it is) and then providing a half-assed unenthusiastic defense. When you have all the wealth and power of the state (not to mention public opinion and the media) lined up to crucify you, you have every right to expect the one guy (or woman) in your corner to provide as ruthless a defense as you can get. The cops haul people in and, with little or no oversight, interrogate them for hours, legally using deception, lies, and intimidation to squeeze a confession out of them. By it’s very nature, there’s nothing fair about it. The state, with laws heavily biased in its favor and a public inclined to be on their side, is not there to seek justice. It’s there there to convict people.
A defense attorney with a conscience is not one feels guilty over defending someone he knows did it. It’s one who thinks his job is to win and doesn’t give a rip whether his client is guilty. And that’s precisely who you’ll be looking for if you ever get in trouble.
A defense attorney of my acquaintance explained it to me thusly: “Quality control for law enforcement officers.”
Yes they have the job of getting people out of trouble, and some of those people are bad. They also have the job of making sure that the police (and to a lesser extent courts) behave in accordance with the rules. Police officers that build good cases have very little to fear from defense attorneys (though soft prosecutors are another matter.)
Without defense lawyers all crimes would be solved and punishments would be handed out to the guilty, or whoever happened to be walking by at the time.
A defense attorney that “judges” a client to be guilty is simply one more flaw in the legal system.
It’s a simple choice: either you believe that a defense attonrey should be able to aggressively pursue a defense of his client with whatever ethical and legal means are at his disposal - including asking a jury to find a defendant not guilty when the lawyer knows the client committed the crime, or you don’t believe in the right to have an attorney when one is accused a of a crime. It’s a lengthy explanation, but I think 10 minutes of thought will lead any rational person to exactly that conclusion. It really is that simple.
And, Joe, arguing for a verdict of Not Guilty when a lawyer knows his client is guilty is not lying, it’s an argument that the prosecution has not met its burden of proof. The overall system is far more important than “justice” be served in any individual case. Let me be completely unequivocal: I don’t care how many children a person raped and old ladies he set on fire using the surprisingly flammable blood of dead kttens, if the evidence used to prove his guilt was obtained unlawfully, or the state can’t meet its burden, that man should go free. It’s all about the big picture.
Even when one knows the client is guilty, there are still the questions “guilty of what?” and “what is the right punishment?”.
If the accused killed somebody, was it 1st degree murder, or manslaughter? If he should be convicted, should he be sentenced to death, or five years?
Until convicted, a defendant must be treated as innocent by the government and the jury. One would think the person designated to speak for the defendent would be kind enough to offer the same consideration.
I work for a public defender office, though I do family law (so that would mean defending parents accused of abusing or neglecting their children).
I’m always being asked how I feel about defending people I really believe are bad parents or would harm their children if they get their kids back (which is typically my goal in the cases). I always ask the questioner whether he or she asks his or her corporate attorney friends how they feel about defending some corporation that they believe really is violating SEC regulations, or when they feel that corporation really is using discriminatory employment practices, or their divorce lawyer friends how they feel when they don’t think their client should get half, or is just being greedy. Or why don’t we try and guess how the jewish lawyers who defended the Ku Klux Klan in their free speech case felt when knowing that their clients would probably murder or enslave them if they ran the world.
You can wonder how people do that, or you can just accept the fact that that’s what it means to be a lawyer in an adversarial system (and then accept the fact that you like that system and realize it makes sense): you are an extension of your client, your views don’t matter, your thoughts on what is just don’t matter. By doing your job you make the overall system as just as possible, and that IS what matters.
What do you do when the public defender sides with the prosecutor before tril and say you are guilty without fighting for your right to stay out of prision??