Tuesday, October 24, 2006

Legal Ethical Dilemmas II

The classic legal ethics dilemma everyone asks about is how a criminal defense attorney can represent someone they know to be guilty. The sort answer is a question “What makes you think you know they are guilty?” Real criminal clients do not usually admit they committed the crime – even to their own attorneys. And, indeed, if they do admit it how does the defense attorney know they are telling the truth and not either taking the fall for someone else or engaging in the habits of one of those mental instabilities that cause false confessions? The defense attorney does not know his client is guilty.

All too often in our society people assume that because the accused is a gang member or a rough character that they either committed the crime in question or some other crime, and so deserve to be convicted. But no one knows that except God and the accused. Our system, and real justice, convict or acquit people of specific crimes, not based on status. No one should be convicted because they are considered a member of a “criminal class.” Even a real professional criminal may not have committed the crime of which he is accused. This is especially true today because of the anonymity of big cities, the unreliability of personal identifications of strangers, and the reluctance of the police to use the expensive resources of finger printing and DNA evidence in cases of property crime.

But even if the client is guilty, there are reasons to feel good about defending them anyway.

First, the argument you have probably heard, our system of justice is an adversarial system. It depends for optimal outcomes on a prosecutor and a defense attorney each doing there best for their own side. The defense attorney is there to keep the prosecution honest and make sure no one is convicted without adequate evidence.

Second, a lawyer may seek mercy in place of justice. How do you know that God is not working in the life of defendant, and may not acquit him through the trial procedure for purposes of His own? If we all got what we deserve we would all be dead and damned. The defense lawyer may be an instrument of mercy just as the prosecution may be an instrument of justice.

Third, contrary to popular belief, most criminal defense work does not focus on “trying to get the client off.” In most cases the defense attorney reviews the evidence the prosecution will present, weighs the evidence, works to convince his client he is going to loose the case if a trail occurs, and negotiates a fair sentence in exchange for a guilty plea. Usually plea bargaining works. The plea agreements are often about right. You can have sentencing that is too heavy or too light, especially if you have judges who are social determinists, but usually my experience has been that plea bargaining produces just results.

And, contrary to the impression given by high profile trials with celebrity lawyers, trials usually (but not always) have reasonably just results. Real cases with guilty perpetrators do not usually result in acquittals based on technicalities or the exclusion of inadmissible evidence. And no one should be convicted on inadequate evidence no matter how strong the intuitions of a wronged society.

There is one real moral limitation in defending people accused of crimes however – no attorney should knowingly let his client take the stand and lie. If the client tries to lie the attorney must resign. But the client should be advised not to lie. Of course this brings us back to the first paragraph of this post though. The attorney does not usually know his client is guilty. So the attorney does not usually know if his client is lying or not. But then everyone is entitled to be given the benefit of the doubt by someone, if only by their attorney.

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