do you guys hate lawyers yet?

[Dartmouth2005]

First, the PD makes the state prove each and every single element of the offense beyond a reasonable doubt using evidence that is constitutionally admissible. That seems like a pretty important service to society.

Not everyone who goes to court is guilty. A good chunk are, but it is really easy to get probable cause on anyone. The prosecutor could have overcharged the offense. For example, the prosecutor could have incorrectly charged a simple assault as sexual assault. Should nobody fight that? Or, the police could have violated the defendant's constitutional rights. Should nobody make them adhere to Miranda, Mapp, etc? In those cases, we would pretty much have to rip up the Constitution to get the result that you seem to desire. I don't want to live in that country. PDs make sure that people go to jail for actually violating the statute based on proof beyond a reasonable doubt using evidence that was obtained in accordance with federal and local law.

Second, the PD ensures that the poorest Americans have at least some representation in the courtroom. Again, another important service to society. Take a look at Gideon v. Wainwright. That guy was innocent and, due to the lack of legal representation at his first trial, he went to jail. On retrial after the Supreme Court said he had to have a lawyer even if he could not afford one, he was acquitted.

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[KinasePro]

First, the PD makes the state prove each and every single element of the offense beyond a reasonable doubt using evidence that is constitutionally admissible. That seems like a pretty important service to society.

Not everyone who goes to court is guilty. A good chunk are, but it is really easy to get probable cause on anyone. The prosecutor could have overcharged the offense. For example, the prosecutor could have incorrectly charged a simple assault as sexual assault.

Second, the PD ensures that the poorest Americans have at least some representation in the courtroom. Again, another important service to society.

I agree with all of these points, but they are non-sequiters to my objection. I agree, everyone deserves a quality defense and they should be guarded from over-charging and social inequality. And I'd even cede that the current system is completely appropriate for the majority of cases that make it to trial.

But my objection is that the current system incentivizes deception and persuasion of the jury by the PD, and in the cases I described it's hard to see how the PD is anything but an obstruction to justice. It seems to me that PDs like my professor have no moral code, and their job is see what they can get away with. How can you present a client as innocent to a jury, when they admitted to you that they are 100% guilty? Sure, you're taking advantage of the lack of evidence against your client, and you're 100% playing by the rules. But thats a massive moral conflict to me, and I don't understand how people can be comfortable in that role.

All that being said, I have no suggestions for improvement, apart from maybe changing the jury of you peers to a jury of individuals who are less easily persuaded and meet some standard of education/training.

 

[ucladoc2b]

I agree with all of these points, but they are non-sequiters to my objection. I agree, everyone deserves a quality defense and they should be guarded from over-charging and social inequality. And I'd even cede that the current system is completely appropriate for the majority of cases that make it to trial.

But my objection is that the current system incentivizes deception and persuasion of the jury by the PD, and in the cases I described it's hard to see how the PD is anything but an obstruction to justice. It seems to me that PDs like my professor have no moral code, and their job is see what they can get away with. How can you present a client as innocent to a jury, when they admitted to you that they are 100% guilty? Sure, you're taking advantage of the lack of evidence against your client, and you're 100% playing by the rules. But thats a massive moral conflict to me, and I don't understand how people can be comfortable in that role.

All that being said, I have no suggestions for improvement, apart from maybe changing the jury of you peers to a jury of individuals who are less easily persuaded and meet some standard of education/training.

I don't think he/she is saying the attorney needs to present the client as innocent to a jury. The attorney (and I'm over-simplifying the role) is there to make sure the rules and procedures are followed. Deception probably is not the goal in most cases. Even if the person is "100% guilty," what statute did the defendant violate? In general, more evidence decreases the defense's options to instill reasonable doubt.

I'd be much more worried about a conviction based on lack of evidence (like what happened to this guy http://usnews.nbcnews.com/_news/201...ar-high-school-football-star-brian-banks?lite).

 

[KinasePro]

I don't think he/she is saying the attorney needs to present the client as innocent to a jury. The attorney (and I'm over-simplifying the role) is there to make sure the rules and procedures are followed. Deception probably is not the goal in most cases. Even if the person is "100% guilty," what statute did the defendant violate? In general, more evidence decreases the defense's options to instill reasonable doubt.

In the case of little evidence and a guilty client, this is where the moral conflict arises. You're defending someone who has admitted guilt to you, and you help this person escape justice because he/she wasn't caught red handed. If there is not enough evidence to convict, a competent lawyer will then build a narrative of innocence (as was the case with the lawyer I mentioned previously), even though the lawyer knows the suspect is guilty. I know, they're just playing by the rules of our justice system, but this seems like a massive moral conflict to me.

 

[Dartmouth2005]

In the case of little evidence and a guilty client, this is where the moral conflict arises. You're defending someone who has admitted guilt to you, and you help this person escape justice because he/she wasn't caught red handed. If there is not enough evidence to convict, a competent lawyer will then build a narrative of innocence (as was the case with the lawyer I mentioned previously), even though the lawyer knows the suspect is guilty. I know, they're just playing by the rules of our justice system, but this seems like a massive moral conflict to me.

Attorney ethics rules allow defense lawyers to represent the guilty to ensure that the state proves each and every single element beyond a reasonable doubt. There are also rules that disqualify attorneys if they have serious moral issues with taking on the case.

Now, if the lawyer knows for a fact that the client is guilty, then they ethically cannot make the factual assertion that the client is innocent. That violates ethic rules on candor to the court. [Of course, if they happen to NOT inquire directly from the client, they do not know about guilt to the point that it would disqualify them from arguing actual innocence.]

 

[ucladoc2b]

In the case of little evidence and a guilty client, this is where the moral conflict arises. You're defending someone who has admitted guilt to you, and you help this person escape justice because he/she wasn't caught red handed. If there is not enough evidence to convict, a competent lawyer will then build a narrative of innocence (as was the case with the lawyer I mentioned previously), even though the lawyer knows the suspect is guilty. I know, they're just playing by the rules of our justice system, but this seems like a massive moral conflict to me.

A good defense attorney does not so much try to portray someone as innocent above imposing reasonable doubt. Usually, a criminal defense strategy is much more complicated than this and involves questioning of procedure, evidence, statute violated, rights guarented to the individual and established by precident, et cetera (once again, I am not an attorney, so any one legally trained, please feel free to chime in and give a better answer).

Once again, convictions need to be based on evidence beyond a reasonable doubt. If the evidence is not there, the jury should not convict. Juries convicting on bad/lack of evidence would be a huge problem not just on an individual level, but on a whole societal level.

Most lawyers would argue that in fact that your professor is performing his moral duty by ensuring that his client recieved a proper defense, and that his moral conflict would stem from his failure to perform his duty. He ensured that the rules of the criminal justice system were followed, rights were upheld, and cast reasonable doubt on the prosecution's case. That is the attorney's job.

Now, if your professor put a witness on the stand an encouraged him/her to commit purjury or submit false testimoney or false evidence, that would be a whole different story.

 

[KinasePro]

Attorney ethics rules allow defense lawyers to represent the guilty to ensure that the state proves each and every single element beyond a reasonable doubt. There are also rules that disqualify attorneys if they have serious moral issues with taking on the case.

Now, if the lawyer knows for a fact that the client is guilty, then they ethically cannot make the factual assertion that the client is innocent. That violates ethic rules on candor to the court. [Of course, if they happen to NOT inquire directly from the client, they do not know about guilt to the point that it would disqualify them from arguing actual innocence.]

So this means then the professor I mentioned was probably acting unethically, by attorney standards? Your point is well-taken, but I'm a little skeptical that this behavior isn't commonplace, as he seemed pretty proud of his work.

Most lawyers would argue that in fact that your professor is performing his moral duty by ensuring that his client recieved a proper defense, and that his moral conflict would stem from his failure to perform his duty. He ensured that the rules of the criminal justice system were followed, rights were upheld, and cast reasonable doubt on the prosecution's case. That is the attorney's job.

I would disagree with you slightly here, because legal != moral. "Proper defense" in this case is a construct of our justice system, but this example boils down to a person convincing a jury that a rapist was innocent, all the while knowing the rapist was admittedly guilty. I agree that he did his job competently and within the confines of the law, but I disagree that his tactics were moral.

 

[ucladoc2b]

I would disagree with you slightly here, because legal != moral. "Proper defense" in this case is a construct of our justice system, but this example boils down to a person convincing a jury that a rapist was innocent, all the while knowing the rapist was admittedly guilty. I agree that he did his job competently and within the confines of the law, but I disagree that his tactics were moral.

I would have to look at the whole case to know for sure what was said. But I'll make these points.

1) Depends what the professor had direct knowledge of versus the charges the defendant faced. He may know exactly what happened and the defendant may have spared no detail in his description of his events and his role. Nevertheless, the question at this point becomes wheter his actions violated the current statutes, what the evidence is, and to what degree. This is why there is a trial.
2) A verdict of not guilty is not the same as innocent. The jury does not return a verdict of innocent. The jury returns a verdict of not guilty (which really means the prosecution did not provide sufficient evidence beyond all reasonable doubt that the defendant violated the law).
3) The defendant has a constitutionally-guarenteed rights under the 5th and 6th amenments to the US Constitution.

 

[Dartmouth2005]

So this means then the professor I mentioned was probably acting unethically, by attorney standards? Your point is well-taken, but I'm a little skeptical that this behavior isn't commonplace, as he seemed pretty proud of his work.

Not necessarily. It depends on what he knew at the time and what he said (like the exact words) in court.

I don't know what exactly this guy said but I'll assume he wasn't full of it and that you aren't trolling here.

I am an attorney, have been for 4 years, have actually done criminal trials/appeals/writs, and can't think of any PD I know that would ever risk an ethics complaint for any of their non-paying clients by misrepresenting something to the court. If we do get caught, we get a nice published state Supreme Court opinion with our names on it. A notice goes in the bar journal that goes out to every member, and any future client could find it online.

What do PDs have to gain by going down this unethical road? They aren't paid by the client nor are they paid on the results that they get in the case. Indeed, in MI, they plead out cases as quick as they can because they are paid a flat fee for handling the entire case.

 

[High Roller]

I agree that everyone is entitled to a defense, no doubt about it. But I've met a handful of public defenders that just turn my stomach. One professor of mine (a former PD) would brag about how he was able to weasel out of rape and DUI charges for his 100% guilty defendants. What kind of service to society is that? Their credo is to get the client off with as little punishment as possible, even if the client committed the crime. I just don't understand why anyone would want to do that, especially in cases where the defendant was clearly putting the lives of others at risk.

Also, I've heard the argument that 100 guilty should go free instead of a single wrongful punishment, and I don't think I can agree. What if those 100 guilty then rape & murder 200 innocent people? I'd consider that a failure of the justice system. Put another way, this is basically a sensitivity vs specificity argument. Would you rather have a cancer screening test that is 100% sensitive and 99% specific or 1% sensitive and 100% specific? I'd pick the former.

The service to society is that even people who commit heinous crimes deserve representation. And remember that the vast majority of crimes aren't murder or rape...they're drug possession, DUIs, petty theft, misdemeanor traffic violations, etc. People doing stupid things... which a lot of people do at some point in their lives.

And your analogy ultimately depends upon what you value. "Whats the cancer?" so to speak. For you it seems that punishing the guilty is equivalent to finding 'cancer'. For me its making sure the court sorts out innocent and overcharged people. Its all about perspective.

I respect where you're coming from, but I think its a scary premise that you're arguing. And I stand by my assertion: I would still rather see 100 fellas go under-punished than 1 guy get over-punished. Hows the old saying go... "those who sacrifice freedom for security deserve neither. "...

Like I was saying, maybe I'm too much an idealist, but I place much more value on preventing our justice system from overstepping its bounds. Its what separates us from stuff like the witch hunts of the past.

 

[ucladoc2b]

The service to society is that even people who commit heinous crimes deserve representation. And remember that the vast majority of crimes aren't murder or rape...they're drug possession, DUIs, petty theft, misdemeanor traffic violations, etc. People doing stupid things... which a lot of people do at some point in their lives.

And your analogy ultimately depends upon what you value. "Whats the cancer?" so to speak. For you it seems that punishing the guilty is equivalent to finding 'cancer'. For me its making sure the court sorts out innocent and overcharged people. Its all about perspective.

I respect where you're coming from, but I think its a scary premise that you're arguing. And I stand by my assertion: I would still rather see 100 fellas go under-punished than 1 guy get over-punished. Hows the old saying go... "those who sacrifice freedom for security deserve neither. "...

Like I was saying, maybe I'm too much an idealist, but I place much more value on preventing our justice system from overstepping its bounds. Its what separates us from stuff like the witch hunts of the past.

Agree with you wholehartedly. Even with its flaws, the criminal justice system works pretty well. Is there room for reform and betterment? Always. But it's not bad at all.

I especially agree with your point on the justice system overstepping its bounds. Facing false charges must be terrifying, and so many criminal investigations descend so quickly into witch hunts (the Duke lacrosse case comes to mind). Thankfully, the justice system is heavily tilted towards having to prove the defendant's guilt rather than the other way around.

 

[KinasePro]

What do PDs have to gain by going down this unethical road? They aren't paid by the client nor are they paid on the results that they get in the case. Indeed, in MI, they plead out cases as quick as they can because they are paid a flat fee for handling the entire case.

While they may not have anything to gain by being deceptive, the risk of getting caught doesn't sound very compelling either. After all, you have a confidential relationship with your client, so anything he tells you is completely under wraps. If you successfully convince the jury that your client is innocent, he is acquitted and you look like a good attorney, everyone wins. And since we're talking about Joe Sixpack's DUI and rape charges, I'm doubtful there would be much scrutiny into your confidential conversations with your client, regardless of the outcome.

Don't get me wrong, I'm not saying all PD's operate this way.

The service to society is that even people who commit heinous crimes deserve representation. And remember that the vast majority of crimes aren't murder or rape...they're drug possession, DUIs, petty theft, misdemeanor traffic violations, etc. People doing stupid things... which a lot of people do at some point in their lives.

And your analogy ultimately depends upon what you value. "Whats the cancer?" so to speak. For you it seems that punishing the guilty is equivalent to finding 'cancer'. For me its making sure the court sorts out innocent and overcharged people. Its all about perspective.

I respect where you're coming from, but I think its a scary premise that you're arguing. And I stand by my assertion: I would still rather see 100 fellas go under-punished than 1 guy get over-punished. Hows the old saying go... "those who sacrifice freedom for security deserve neither. "...

Like I was saying, maybe I'm too much an idealist, but I place much more value on preventing our justice system from overstepping its bounds. Its what separates us from stuff like the witch hunts of the past.

RE: the cancer analogy, I'd say the cancer is people in society who are a danger to others. I'm not blood thirsty about punishing them or anything, but our justice system is the primary way that those individuals are identified and removed from society. I know I'm taking an unpopular angle here, and I'm not saying that criminal prosecutors should somehow be empowered in our system (or that criminal defense should be somehow maimed). But I think our justice system would be better at its role (at least as I see it) if there was better ethical oversight as to what happens between clients and lawyers.

Unfortunately I think the "100 go under-punished rather than1over-punished" concept has become a pipe-dream. I hate to think about the number of innocent people currently behind bars (esp. minorities). Our system isn't very good at living up to it's own ideals. And I think that is partially due to the jury of our peers, who are still susceptible to witch-hunt tactics, racism, and sophistry. Hell, look at OB/GYN. Practically every one of their mal-practice cases is a witch hunt, trying to find someone to blame for mostly unavoidable tragedies.

 

[thesauce]

Welp, that's a problem (or not, depending on how you see it) with the entire US judicial system as it has existed for 200 years, not a problem with lawyers. Although in my own state, malpractice cases do get reviewed by a board of physicians before moving on. They can't take away your right to sue, but they can offer an opinion that a case is founded or unfounded, which holds a fair bit of weight with judges and juries.

A malpractice case that actually goes to a jury is pretty rare, too.

Interesting. Which state is this?