TheAgitator.com
More on the Glik Decision
Saturday, August 27th, 2011The Right To Record blog has some good analysis of yesterday’s 1st Circuit decision, including what it might mean for ACLU v. Alvarez, which the Seventh Circuit will hear next month, and a rebuttal of my concerns about the Glik opinion stopping short of striking down the applicable portion of the Massachusetts eavesdropping law.
I found this bit particularly interesting:
Curiously, Lisa Skehill Maki, the author of the brief for the City of Boston, wrote her student note on how the Massachusetts law was wrong. Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981 (2009). This ironically makes her very qualified to defend that law. Additionally, her note briefly mentions the Glik case when it was still at the criminal stage. Id. at 1006.
Her brief is useful for practitioners. There are not many good briefs on this issue from municipalities–and some are plain baffling. Maki’s brief is very well done–she catches one case I overlooked, Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009). This brief is a good study for practitioners to see what a competent brief against a a clearly established right to record might look like.
You could probably make a case that Maki’s brief for the city of Boston and her student note aren’t entirely contradictory. Her note argues that there should be a First Amendment right to record on-duty cops, while her brief (mostly) argues that the police should be protected by qualified immunity because that right has not been clearly established. Still, she’s essentially arguing for the preservation of a law that two years ago she argued was used to cloak police misconduct.
Also, every time I refer to this case I’m going to think of this.
MORE: Carlos Miller has a roundup of items related to the decision, including details on some new arrests and charges, including in Massachusetts.
Welcome to life as a lawyer, Ms. Maki. I’ve made many an argument for a client that I was personally opposed to and didn’t think should win (and have won!). The client’s interests come first.
I’ve made many an argument for a client that I was personally opposed to and didn’t think should win (and have won!).
Which is why many people find the profession ethically suspect. I think it’s especially troublesome when you’re arguing in favor of government power to step on basic rights you feel are protected by the Constitution. But that probably goes with my being a libertarian.
Cops don’t really think citizens videotaping them
is wiretapping…it’s just something they hide behind
because it’s harder to play God and browbeat people on the street when
it’s captured on tape. Privacy, safety, my culo.
The punishment is the arrest, trial, etc, not the inevitable acquittal.
It’s just amazing the Courts haven’t sided against these cops/DAs more
vociferously.
Any time the Gov’t puts 2.3 million in jail it’s time to start lengthening the
Bill of Rights.
“The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
YES! One step forward…
I’d say it only seems ethically suspect when the Government is doing it. As a defense attorney your ethical duty is to your client which the single individual that is paying you. The client for a Government lawyer is pretty much everyone so arguing against some right is pretty unethical.
#2 | Radley Balko | “Which is why many people find the profession ethically suspect.”
If an ethical lawyer is becomes aware that a case he has not yet accepted would require him to argue for things he does not believe, he should decline the case. Indeed, ethical lawyers should be somewhat proactive to ensure before accepting a case that they won’t have to argue anything they don’t believe. If, however, an ethical lawyer discovers the need for insincere argument only after he has already accepted a case and received a significant amount of his client’s time and money, there may be no way for him to back out of the case without causing substantial harm to his client. Even if he were to reimburse the client for any fees paid, he could not very well make up for the fact that any time the client spent with him was time the client could have spent with a different attorney.
Besides, in many cases, it is in the best interests of society to have the best arguments put forth by both sides in a case. Having the right side win with an argument which is way over-broad but goes unchallenged, can sometimes establish precedent which is far more damaging to society than would have been a win for the wrong side. Having a skilled lawyer play devil’s advocate may often be in everyone’s interest, no matter how badly his client deserves to lose.
“Also, every time I refer to this case I’m going to think of this.”
Oh. *Absolutely*.
I’m curious about what sort of mental gymnastics a lawyer must go through in order to defend a client they KNOW is guilty.
Reminds me of that movie “Devils Advocate”.
The guilty need a lawyer too, and one that will do their best. I’m just not cut out to be one of those guys, I couldn’t rationalise it. I’m happy to be an engineer.
Part of being a lawyer is putting your client’s interests before your own. If you can’t do that, then don’t become a lawyer. Which beliefs are ethically sacrosanct, anyway? If your client is Jewish and he does something on a Sunday and you’re a devout Christian and you think that’s wrong, should you betray your client’s interest because his actions were morally wrong to you? If you see that as at all problematic, then you understand why a lawyer has to put his client’s interests ahead of his personal beliefs and interests.
Stephen, the defense attorney’s job at trial is always the same: to put the state to its burden of proof and try to foster a reasonable doubt of guilt in the jurors. Most criminal defendants *are* guilty of the crime with which they are charged. If you know that, your job is generally to get the defendant the best plea offer you can, and convince him to take it.
Sometimes, clients just won’t take a deal. Other times the state used unconstitutional means to gather evidence of the crime. Then the defense lawyer’s job is to make the state prove its case with admissible evidence, and if the state can’t do that, it’s the state’s problem. A defendant is not legally guilty until a jury (or judge, in some cases) says the defendant is guilty, no matter what anyone thinks (the defense lawyer’s judgment in this regard is no different than the arresting officer’s or the prosecutor’s). Whether someone is factually guilty doesn’t really matter (unless you want to shitcan the exclusionary rule).
There are a lot of ethically questionable lawyers. I have some good stories about that, but being able to argue both sides of an issue for a client is not an ethically questionable activity, and being able to argue for your client even if that argument is personally objectionable (or harmful!) to you is not only honorable, but required.
I am curious how far this ethical dilemma reaches for Radley, though. I mean, under this rule I couldn’t represent a defendant I knew was factually guilty, no matter what the state did to get the evidence, because the defense is inconsistent with my beliefs. What about if I personally believe a provision of the UCC calls for a certain outcome that does not favor my client, but it can be read to call for a different outcome that does favor my client? Can I not argue for the second outcome? How does that work? Which questions have sufficient moral significance that I can subjugate my obligation to zealously represent my client to my personal beliefs?
#5 MikeZ–completely agree. The job of a defense attorney is to get the best possible outcome for his client. The job of a prosecutor is to seek justice. That does not always mean a conviction, or upholding a bad law. Indeed since a prosecutor swears to uphold the Constitution, that includes declining to enforce or support an unconstitutional law.
“How can you defend someone you know is guilty?” I and other defense attorneys do get tired of that question, though I understand why people ask it. When I represent a client it does not mean I approve of him/her or that I personally believe they are innocent. I am forcing the government to follow the law and if they are not able to do what is necessary to convict my client then he/she should not be convicted. It’s called “rule of law.” We aren’t a perfect country but at least we have ideals–like the presumption of innocence, right to an attorney, right to a jury trial, requirement for probable cause to search or arrest, etc–that we generally try to live up to, though it’s a tough fight sometimes. How many other countries guarantee all of those rights in writing to their residents? That is what defense attorneys represent.
John,
Didn’t mean anything personal. There are obviously some lawyers for whom I have immense respect. And I understand the “the client always comes first” ethic. I just have problems with it being the foremost ethic. I think it’s entirely fair to criticize someone who is arguing to preserve a law that two years ago she argued was unconstitutional and used to shield police abuse. And I don’t think “the client comes first” argument should make her immune from criticism just because she now works for the government. Same way that I don’t think John Yoo & Co. should be immune from criticism for giving legal authority to government torture simply because that’s what they were asked to do by their client–in this case the White House. (In the case of defending someone you suspect is guilty, I personally put a premium on requiring the government to prove its case, as well as protecting the constitutional rights of the accused.)
Of course the question of what ethics ought to trump an attorney’s professional duty to his client is obviously subjective. I guess I’m just disputing the notion that no ethic or value should, which is often the blanket response to criticisms like the one I make in the post above.
I do think the client comes first makes her immune from criticism on that score. A lawyer’s position, taken for a client, cannot be fairly held to be the lawyer’s position.
I think that what John Yoo did was wrong because it was bad lawyering. He gave the client what the client wanted, instead of what the client needed (good legal advice). In that sense, Yoo stopped being a lawyer and became a scrivener, which is a bad thing to do.
Here, this lawyer made a colorable argument in support of a bad policy. She has to do that because that’s in the client’s best interest. If it makes anyone feel better, given her choice of career, I doubt seriously that she held the beliefs espoused in the article. She’s probably just smart enough to know that an article going that way would be more likely to get placed, given the biases of student editors of law reviews. But, even if she did, if there is a colorable argument in favor of her client’s position, she is ethically obligated to make it, or to resign if that won’t hurt the client. If the argument is that she should resign (and any other lawyer should), you’re setting an awfully high bar there for lawyers that I don’t think other people are held to.
Finally, I think you’re overlooking an issue in this particular instance. Suppose that she does, in fact, hold to the beliefs she espoused in the recent article. If she does what she’s asked and makes the colorable argument, she might win, but the longer she does the job, the more likely she will be to be in a policymaking position. Like a legislator who agrees to vote for a bad law to get a good law passed, if you aggregate up the two and the difference is positive, I think you can count that as a win. That’s hard to do, but I don’t think it’s fair to judge her on exclusively this issue. What if she’s routinely dismissing silly marijuana charges and to keep doing that she has to do this? I don’t think your bright line here is going to do anyone any favors.
“Which beliefs are ethically sacrosanct, anyway?”
Yours, apparently?
Can we please dispense with the delusions of people who tell us to set aside morality because morality is subjective only to smuggle their own moral premises into the argument?
[...] today, the police in the Town of Palmer ignored the historic Glik decision and went ahead and arrested a cameraman, me, for recording video in their town hall. Darryl [...]
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