The Ethics of Criminal Defense

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Jun 19, 2011 16:15:23 GMT -5 iamjumbo said:

Jun 17, 2011 12:38:40 GMT -5 @trubble said:

Casey Anthony hired him. She got his name from some fellow detainees who said he was good. But, you know, if they were in there with her how the hell does that recommend him?

of course, an attorney's responsibility is NOT to get you acquitted of a crime that you commited. the defence attorney's job is to provide you with the best possible defense within the facts of the case, and to ensure that your due process rights are not violated.
attorneys are officers of the court, and their job is to find the truth. NOTHING else is relevant to their job

Sometimes that includes trying every avenue that might get a not guilty response. That's the test of the law.

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The following piece is from: www.ethicsscoreboard.com/index.html





>>>The Ethics of Justice: Why Criminal Defense Lawyers Defend the Guilty<<<



The single most requested topic by Ethics Scoreboard readers is in the area of criminal defense lawyer ethics: how can it be right for an attorney to defend in court an individual that he or she knows is guilty? The fact that so many Americans are perplexed by this after two centuries is an indictment of the legal profession, which has flunked its obligation to protect its role in a crucial Constitutional right by making sure that it is understood. A few years ago, Fox TV commentator Bill O'Reilly led a campaign to get California criminal lawyer Jeffrey Feldman disbarred because leaked plea bargaining sessions showed that he knew his client, child killer David Westerfield, was guilty of murder while Feldman was vigorously disputing his guilt in court. O'Reilly pronounced Feldman a liar. He was wrong, but his confusion, in this matter at least, is excusable.

To understand the criminal lawyer's ethical responsibilities, begin with this: the Founders of the American republic believed that citizens in a fair and just society shouldn't be imprisoned or punished just because the government decides they are guilty of something, whether it is murder, robbery, not paying taxes or, as with John Hancock and Samuel Adams, criticizing those in power. They wisely decided on a system that required the government to prove that an individual had committed a crime to the satisfaction of an unbiased jury. Not only that: they decided that a very high standard should be applied in determining legal guilt: "beyond a reasonable doubt," or near certainty. Why? Taking the cue from British legal scholar William Blackstone, who famously said that it was better to have ten criminals escape punishment than to have one innocent man imprisoned, uber-Founding Father Benjamin Franklin said that "… it is better one hundred guilty Persons should escape than that one innocent Person should suffer." Achieving this ideal means keeping the government honest: no convictions based on false or planted evidence, unreliable or lying witnesses, or confessions extracted from the accused by torture, beatings, or other forms of duress…even if the accused is, in fact guilty. All that is essential for the system to work. If we permit the government to cheat in order to imprison a guilty individual, we have no way to stop it from cheating to imprison an innocent one. Indeed, it will be impossible to tell the difference.

So regardless of whether a criminal lawyer's client is guilty of the crime he or she is being tried for or wrongly accused, the defense attorney's job doesn't change: make the prosecution prove its case with sound arguments, real evidence, and reliable testimony. In a sense, the real client of a defense attorney isn't truly the defendant at all but the integrity of democracy and the justice system. For example, O'Reilly was incensed that Feldman, while defending Westerfield, argued to the jury that the state's evidence suggested that certain persons other than his client may have killed the victim. "That's a lie!" Bill fumed, turning all red like he does when he's really upset. But it wasn't a lie: Feldman's argument was absolutely correct. The evidence in question didn't rule out other suspects. The jury would be making its decision based on false reasoning if it took the prosecution's word that the evidence only implicated Westerfield. Feldman was meeting his ethical duty to point out to the jury that the prosecution's argument was not as conclusive as it claimed. Again, his job was to make the prosecution prove its case.

Feldman did his job, and the prosecution and jury did theirs: David Westerfield was convicted. But what about the equally guilty O.J. Simpson, who was acquitted? If the late Johnny Cochran and the rest of O.J.'s legal team knew he was guilty, didn't they knowingly perpetrate a terrible miscarriage of justice. Didn't they willingly let a double murderer loose on the golf courses of Florida and California? How can that be ethical?

Of course, we don't know if Simpson's lawyers "knew" he was guilty. Many defense attorneys don't want to know, because knowing can make it harder (or impossible) for them to do their jobs. It can be difficult to point out flaws in the prosecution's case if you are hoping that the prosecution puts on a slam dunk case and the homicidal monster sitting next to you gets locked up for good as a result. And many defense lawyers set out to convince themselves of a defendant's innocence, no matter how unlikely, because such a mindset helps them make sure that they won't subconsciously do a sub-par job out of sympathy for the victims or revulsion for their client.

But even assuming that the Simpson legal team was certain that O.J. hacked Nicole Simpson and Ron Brown to death, they had reason to sleep soundly on the night after the acquittal. They held up their end of the Constitutional directive. They ensured O.J. a fair trial, which every American from Ted Bundy and Jeffrey Dahmer to Michael Jackson and Martha Stewart to you and I, must have before the government takes away our freedom. In the O.J. Simpson case the prosecution was amateurish, the police were inept, the judge was unable to control the trial, and the jury simply didn't have the ability to follow a case that had too much evidence and too many witnesses, that went on far too long, and, most crucial of all, had a defendant that the jurors thought they "knew" because he was a celebrity. Arguably every componant of the Simpson trial except the defense performed badly, and some aspects of the trial might support arguments for reform, but the failings of the rest are not the fault or the responsibility of Simpson's defense attorneys.

Criminal defense attorneys have an unimaginably difficult task, as stressful and emotionally challenging as that of a surgeon who must hold life in his hands, and be able to watch a patient die under his scalpel and return to operate again the next day. 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. Individuals accused of crimes become helpless, completely dependent on the good faith and competence of police and prosecutors for their fate. The individual, guilty or guiltless, becomes powerless, and the Founders' dream is betrayed.

Many attorneys can't handle the complex ethical balancing that criminal defense work requires. I left criminal practice because I couldn't. But they are not the villains and liars of the American justice system; they are its ethical heroes. Their zeal in making sure that citizens lose their freedom only when there is strong evidence to justify it protects all of us, and we owe them our gratitude, and perhaps some day, our lives.

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[Erasmus]

That is why I prefer the Napoleonic system to the Anglo-American one. The second comes down to word games and if necessary, concealing evidence and outright lying. It does not help when the the solicitor who knows the details may not always work closely with the barrister presenting them. Then you get as much as the client wants the solicitor to know filtered through as much as the solicitor wants the barrister to know filtered through as much as the barrister wants the court to know. It feels much better to me, that the State should investigate to discover what happened impartially than to decide in advance what case it wants to prove.

[iamjumbo]

Jun 20, 2011 10:08:31 GMT -5 Erasmus said:

That is why I prefer the Napoleonic system to the Anglo-American one. The second comes down to word games and if necessary, concealing evidence and outright lying. It does not help when the the solicitor who knows the details may not always work closely with the barrister presenting them. Then you get as much as the client wants the solicitor to know filtered through as much as the solicitor wants the barrister to know filtered through as much as the barrister wants the court to know. It feels much better to me, that the State should investigate to discover what happened impartially than to decide in advance what case it wants to prove.

there is no anglo-american one. in the u.s., the laws of forty-nine states are based on english common law, and in louisiana, it is based on the code of justinian, ie napoleonic law.

[iamjumbo]

Jun 20, 2011 5:24:31 GMT -5 @trubble said:

Jun 19, 2011 16:15:23 GMT -5 iamjumbo said:

of course, an attorney's responsibility is NOT to get you acquitted of a crime that you commited. the defence attorney's job is to provide you with the best possible defense within the facts of the case, and to ensure that your due process rights are not violated.
attorneys are officers of the court, and their job is to find the truth. NOTHING else is relevant to their job

Sometimes that includes trying every avenue that might get a not guilty response. That's the test of the law.

a trial is, by definition, a search for the truth. that is what makes justice.
it is reasonable, and a requirement of the job, to compel the prosecution to prove the defendant guilty beyond a reasonable doubt. it is not reasonable, nor a requirement of the job, to concoct obvious fabrications simply to get an acquittal.
most of what your article says comes under the heading of due process. some, however, is just plain dumb.
the simpson case IS a good example, and the chap's analysis is fairly right on. the prosecution was about as inept as it comes, and johnnie overlooked ethics to get simpson acquitted. nonetheless, the bottom line there is that it didn't matter which side presented the case. that jury was composed of imbeciles who were too stupid to consider the evidence. they thought that "sending a messge" was more important than justice for two murder victims
the biggest ethical violation was johnnie's playing the race card. since race had absolutely NO relevance to the case in any way, it was inexcusable to play it.

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I sort of agree with you on everything you say, with a few ifs and buts.

Johnny Cochrane was (ethically) wrong to make race such a huge aspect, but hadn't several other people already done so? The crowds outside the court, some media, the policeman who made the stupidest of comments possible...

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it is not reasonable, nor a requirement of the job, to concoct obvious fabrications simply to get an acquittal.

Of course. But it is reasonable for the defence to argue that the prosecution is blinkered and chasing one line of investigation whilst ignoring other very possible explanations.

And in doing that the defence must present another possible explanation.

So, however annoying it is, it can't really be any other way, can it?

most of what your article says comes under the heading of due process. some, however, is just plain dumb.

Which bits are dumb?

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In very basic pre-schooler terms... what does Napoleonic Law (or Justinian) do so much better than English Law? And if it's at work in Louisiana ... why? ...and how?

[fretslider]

Jun 20, 2011 17:32:47 GMT -5 @trubble said:

In very basic pre-schooler terms... what does Napoleonic Law (or Justinian) do so much better than English Law? And if it's at work in Louisiana ... why? ...and how?

Continental law is inquisitorial by nature - searching for the truth.

English law is confrontational, it is concerned with successful prosecutions and/or getting off.

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(Thanks)

So everything is more like an inquest? No advocates? Do they need the same 'reasonable doubt'?

[Erasmus]

Jun 20, 2011 17:32:47 GMT -5 @trubble said:

In very basic pre-schooler terms... what does Napoleonic Law (or Justinian) do so much better than English Law? And if it's at work in Louisiana ... why? ...and how?

Louisiana because it was a French colony. It's not really Napoleon, he only codified it. It actually goes back to Roman tradition of legislated statute law codified first by Justinian - though since the West had gone kaputt by his day, I don't know what effect it had West of Croatia. Scots law is rather similar, and Scotland has advocates who both prepare the case and present it in court. So does Jersey, but instead of a procurator fiscal, the professional police have to hand findings over to the elected police to decide just what charges to bring or if they can handle it (little things usually like under £100 fine). The Crown Prosecution and State Prosecution Services are a move towards a more investigatorial approach.

That's why you often hear of Italian and French judges investigating a case. The French is Juge d'instruction but they are not judges at all, they are investigating magistrates able to direct the police line of inquiry and to make their own and collect statements so that a trial is much more of a foregone conclusion based on prepared evidence with witnesses called mostly to corroborate or to cast doubt or further explanation about it.

It is much more an approach of determining what crime the evidence shows was committed than finding and disputing the evidence in support of the crime alleged. The nearest in an English court is that a murder charge might still be convicted of manslaughter.

BTW This is how Scotland comes to have three verdicts. The original was that the accused was Guilty or Not Guilty according to a jury but quite early on, that came to be replaced by the jury deciding whether the facts of the case were Proven or Not Proven and if they were Proven, then it was up to the judge to decide what crime had been committed and to deal with it.

Came a notorious killing case where there was no doubt about the facts and equally no doubt that the killing had been pretty much accidental in the course of self-defence, but the law left no option except a conviction and hanging for murder. So the jury revived the obsolete verdict of Not Guilty, forestalling the judge from taking action. Just why he couldn't, I don't know. Maybe he didn't know all the background, maybe there was something political and he was English, or maybe the jury just thought the dead man was asking for it and deserved it at last. Anyway, the result was to put Not Guilty back on the books. Technically speaking, a Scottish jury can't convict of a crime, it can only confirm that the case has been made validly or not - and not these days usually comes in as Not Guilty.

Where Not Proven should be used is more for cases where legal technicalities make the evidence inadmissable, because I think a retrial is possible under Not Proven but not under Not Guilty. It's really a case of we all know they did it but this evidence isn't good enough, go away and do it again because we don't want to let the bugger off either. A good time for the accused to cross the border!

[fretslider]

Jun 20, 2011 17:47:32 GMT -5 @trubble said:

(Thanks)

So everything is more like an inquest? No advocates? Do they need the same 'reasonable doubt'?

Outside England Courts gradually started to apply Roman law —as taught in the university of Bologna (and soon elsewhere) because the judges felt that the refined legal concepts of Roman law were more apt to solve complex cases than the Germanic laws, which had been in use since the fall of the Western Roman Empire to the Germanic Goths. This process (the reception of Roman law) took place in Italy and then in the rest of continental Europe.

Italian jurists were the first to contribute to the new science of law based on the Roman texts.


Have a look at the Knox trial

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I didn't realise that European courts were so different to Irish or English systems. I thought it was more of a matter of protocol and labels. That might explain why I haven't been able to follow the Knox trial! And why laws from the EU seem to upset the British & Irish systems more than other countries? Or is it only in criminal law that we differ?

Thank you both for your explanations.

[fretslider]

Jun 21, 2011 3:35:10 GMT -5 @trubble said:

I didn't realise that European courts were so different to Irish or English systems. I thought it was more of a matter of protocol and labels. That might explain why I haven't been able to follow the Knox trial! And why laws from the EU seem to upset the British & Irish systems more than other countries? Or is it only in criminal law that we differ?

Thank you both for your explanations.

One point on European law. The directive has to be framed in each member state's legislature. This leaves the mechanics of it up to the member state.

[iamjumbo]

Jun 20, 2011 19:38:21 GMT -5 Erasmus said:

Jun 20, 2011 17:32:47 GMT -5 @trubble said:

In very basic pre-schooler terms... what does Napoleonic Law (or Justinian) do so much better than English Law? And if it's at work in Louisiana ... why? ...and how?

Louisiana because it was a French colony. It's not really Napoleon, he only codified it. It actually goes back to Roman tradition of legislated statute law codified first by Justinian - though since the West had gone kaputt by his day, I don't know what effect it had West of Croatia. Scots law is rather similar, and Scotland has advocates who both prepare the case and present it in court. So does Jersey, but instead of a procurator fiscal, the professional police have to hand findings over to the elected police to decide just what charges to bring or if they can handle it (little things usually like under £100 fine). The Crown Prosecution and State Prosecution Services are a move towards a more investigatorial approach.

That's why you often hear of Italian and French judges investigating a case. The French is Juge d'instruction but they are not judges at all, they are investigating magistrates able to direct the police line of inquiry and to make their own and collect statements so that a trial is much more of a foregone conclusion based on prepared evidence with witnesses called mostly to corroborate or to cast doubt or further explanation about it.

It is much more an approach of determining what crime the evidence shows was committed than finding and disputing the evidence in support of the crime alleged. The nearest in an English court is that a murder charge might still be convicted of manslaughter.

BTW This is how Scotland comes to have three verdicts. The original was that the accused was Guilty or Not Guilty according to a jury but quite early on, that came to be replaced by the jury deciding whether the facts of the case were Proven or Not Proven and if they were Proven, then it was up to the judge to decide what crime had been committed and to deal with it.

Came a notorious killing case where there was no doubt about the facts and equally no doubt that the killing had been pretty much accidental in the course of self-defence, but the law left no option except a conviction and hanging for murder. So the jury revived the obsolete verdict of Not Guilty, forestalling the judge from taking action. Just why he couldn't, I don't know. Maybe he didn't know all the background, maybe there was something political and he was English, or maybe the jury just thought the dead man was asking for it and deserved it at last. Anyway, the result was to put Not Guilty back on the books. Technically speaking, a Scottish jury can't convict of a crime, it can only confirm that the case has been made validly or not - and not these days usually comes in as Not Guilty.

Where Not Proven should be used is more for cases where legal technicalities make the evidence inadmissable, because I think a retrial is possible under Not Proven but not under Not Guilty. It's really a case of we all know they did it but this evidence isn't good enough, go away and do it again because we don't want to let the bugger off either. A good time for the accused to cross the border!

that's a pretty good summing up.

[Erasmus]

That said, both are wide open to corruption in different ways. The phrase Italian Law always threatens a fit of the giggles. It has very often been a case of who can bid highest for the magistrates. On the other hand, it's said that relatively minor local trials stopped being heard at the Old Bailey because the jury was so up to it themselves that it wouldn't convict if the Archangel Gabriel presented a video of the crime.