Groovenstein

As many of you know, I am in a rock band, Poor Man's Opera. (www.poormansopera.com or www.myspace.com/poormansoperamusic) We are doing a band picture in the near future for use as a press photo to send to clubs where we want gigs, to use on our websites, to give to media for use with articles, to use on posters advertising shows, etc. After thinking about how impressed I was with the slick, modern look of "300", I got the idea that it might be cool to have a band picture with a digital background. There are of course some logistical issues to work out, e.g. appropriate poses, but I think this would be doable. If any of you are, or know someone who is, talented and willing to do this sort of thing, please e-mail me at [email protected], and include in your message a way for me to look at examples of your work. Thanks!

"We the Living" SPOILER What do you make of Kira's death at the end of "We the Living"? What is the death of the book's primary character in such a way if not to show the destructive nature of socialism?

Easy on the language, people. Besides, one of my brothers was a Ranger and the other is in the Army JAG. This proves that the Army is the best. And my dad was in the Navy, which proves that the Navy is the other best.

I just saw the first public showing here. It was okay. The music was solid, the action sequences were generally cool. The big highlight in this movie, and the first two, is Johnny Depp. He might be the best modern day actor out there. (If I was a praying man, I'd be praying he somehow gets into Atlas. The man can just flat-out act.) The other big highlight, though a far second to Depp's acting, was Keira Knightley. Not necessarily her acting. Just her. She needs to marry me.

Quite simply: "Son, remember how we talked about not believing things just because someone says them? How you should think about them and come to the decision for yourself? That's the same thing we do when someone is charged with a crime. Someone called the prosecutor says things, and I say things, and a group of people called a jury has to decide for themselves what they think happened. The prosecutor might ask questions of a police officer about what he saw. And the officer might say, 'I saw the defendant running out of the store.' Then I ask him about what he saw. I might ask, 'How do you know it was the defendant? How far away were you standing? Was it day or night? What was the lighting like? How's your vision? What were you doing when you say you saw him?" Then I explain in great detail the ins and outs of cross-racial identifications. Then my kid curls up into a ball and starts sucking his thumb and asks me never to explain anything to him again.

Actually, such a statement is flatly prohibited by Rule 3.4(e) of the Nebraska Rules of Professional Conduct which states in relevant part:

Whoever wrote that problem has a promising career in politics ahead of him.

You don't have to make such an argument. Consider the following two statements: 1. This witness has been convicted of perjury and therefore is not telling the truth now. 2. This witness has been convicted of perjury and therefore you can reasonably doubt his veracity now. You don't have to say anything you know to be false in order to make a convincing argument. There is not one false statement in the following closing argument excerpt I just wrote, which is simply a drawn out version of statement 2 above: "Before this trial began, I asked all of you if you would make your decision based on all the evidence, not just bits and pieces. You all promised me you would. You all promised me you would look at all the pieces and see if they could make a picture beyond a reasonable doubt. I'm asking you to make good on that promise. You heard Mr. Smith testify that he saw Johnny with a gun that day. Well, that's one piece of evidence, but it's not the only one. You also heard that Mr. Smith is a convicted perjurer. That means that he took an oath, like the one he took before testifying to you. He promised to tell the truth, the whole truth, and nothing but the truth. But he didn't. And it wasn't by accident. He swore to tell the truth, but when he answered questions he wasn't answering truthfully and he knew it. That's what perjury means, and that's what he did. He lied under oath. He didn't tell the truth. He broke his promise. The prosecution wants you to believe this man, this convicted liar. But you're not here to do what the prosecution wants. You're here to listen to the evidence, and then decide if the prosecution has proven its case beyond a reasonable doubt. And clearly it's reasonable to doubt the testimony of a man who lied before, in a courtroom like this one, after he swore to tell the truth. . . . " Now, if you don't think it's reasonable to doubt the testimony of a convicted perjurer, then you wouldn't make that argument. But I sure as hell thinks that's a reasonable doubt for a jury to have.

Before people start brandishing foils, I'd like to get an idea of specifically which tactics are at issue here. I refer only to tactics because in order for a tactical discussion to matter we have to agree that it is proper in principle to knowingly defend a guilty person. If there is still a dispute over whether it is proper in principle to knowingly defend a guilty person, that should be addressed before addressing tactical questions. Assuming that it is okay in principle to knowingly defend a guilty person (that is, one who did in fact commit a crime that should be a crime), we can proceed to the question of how to defend such a person. Also, Luke you get approximately 14 zillion points for "freaksweetness." All those hours reading Smoove B have finally paid off.

As I interpret the essence of Luke's inquiries, I see two major and distinct questions: 1. Will a moral attorney defend a guilty man? 2. What sorts of tactics are proper when defending anyone (although the answer may vary depending on whether one knows of guilt, the propriety of the law, etc.)? Another way to put these are "Should I defend the guilty?" and "How should I defend someone?". With respect to the second question, raising the issue "you lied for your client" is entirely sensible. I reiterate that this is only my interpretation, not Luke's words.

Is that all? I've got about 125,892 of my own. (The banker offered me 45,713 but I said no deal.) I do think we are making progress, however, which is great. For example, my understanding of the nature of the plea has expanded considerably. So Luke, I know you and I would agree that when defending someone from a bogus crime we would be totally fine using philosophically bogus arguments (e.g. acquit my client because the sky is blue). It further seems to me that you are not fine using such arguments when defending someone who you know committed a proper crime. (I am still unsure.) In light of that, I am curious what you think about the propriety of such arguments when defending someone who is charged with committing a proper crime, but you are unsure whether he did it. Your answer on this, even if not a complete one, might help me understand the nature of your argument better. Or maybe we could just end this whole discussion by seeing what Professor LaFave tells us in his hornbook.

I've actually pointed out the opposite. A plea of "not guilty" is not a declaration of fact, but rather a statement of legally operative significance basically equivalent to "I refuse to incriminate myself" or "I refuse to declare myself legally guilty." The question asked is not "Did your client do it?" it's "How does your client plead?" We're not talking about civil court, where a defendant must respond truthfully to the plaintiff's allegations or be deemed to have admitted them. We're talking about criminal court in a country like the United States where the defendant is not required to dig his own grave. (If you disagree with the Fifth Amendment's prohibition of compelling a criminal to bear witness against himself, that seems like a topic for another thread.)

Though I know what you're getting at, I do take exception with your characterization of the factually correct result as the one that should have been reached morally because it rejects the role of procedural safeguards as part of the idea of justice. Take the case where the defendant is properly acquitted because there was not enough evidence for a rational fact-finder to convict. If it turns out the defendant did commit the crime, would you rather ignore the prohibition against double jeopardy? I say that justice has been done because not allowing multiple prosecutions for the same offense is more important than reaching the factually correct result (eventually) in a particular case. Let's flip the situation around. Say that someone is convicted of a crime he in fact committed, and that should be a crime, because the prosecutor argued that Jesus Christ was the Son of God, and he revealed to the prosecutor in his sleep that the defendant was guilty. Do you think that is justice? I do not. Perhaps you should make an argument in favor of nonunanimous verdicts (which as far as I know are sometimes permitted). And/or in favor of restricting the use of certain arguments, such as the argumentum ad populum you mention. A downside of either, however, would be that you couldn't use them to defend those charged with bogus crimes, unless you had already managed to eliminate those too. A defense attorney is in a much different position than the politician. When the defense attorney succeeds, the mighty sabre of government is returned to its golden sheath. When the politician succeeds, I think you know what usually happens. I certainly think a rapist is a piece of dung, but I think he's a piece of dung whether I'm defending his rape case or selling him a wax sculpture of William the Conqueror. Either your point is wrong or I don't get it. In case you were wondering, you have my permission to rephrase, counselor. As you know (hopefully), while I take issue with some of your presentation thus far, I consider this entire discussion to be immensely fruitful. I hope it continues.

No. You're thinking of "not guilty" in one sense, namely, that the client is asserting that he did not in fact commit the offense. "Not guilty" has another sense in this context, and that is the legal sense. A not guilty plea is just another way of saying "I am legally not guilty because I have not yet been convicted, and I am refusing to confess to the crime with which I have been charged. If you want to put me away, prove it." If you say that pleading not guilty is dishonest (when one did commit the crime), you must also say that pleading the Fifth is dishonest. It is true that by pleading the Fifth one is not saying "I didn't do it," but rather "I'm not saying anything." However, if one refuses to enter a plea, the court will enter a not guilty plea anyway. Neb. Rev. Stat. 29-1819.

Way to omit my italics, jerk. I know this wasn't directed at me, but I'll address it anyway so as to provide more fodder for discussion. While I was a clerk for a public defender, I wrote a brief appealing a juvenile conviction for criminal mischief (vandalizing a restroom). I never met the client nor was I told whether he actually did it. All I had to go on was the record, which I argued (and think) was insufficient to convict beyond a reasonable doubt. I am proud as hell of this one. I am going to be aiding in the defense of a criminal case as a lawyer very soon, as the county court just appointed me to a defendant. She is charged with negligent child abuse for allegedly placing her kids in danger by leaving them in a car. I'm not going to discuss particulars, but I will say that I am very excited about this opportunity and I hope I can get her acquitted or negotiate a favorable plea bargain. Now, I won't be working on felonies for a while probably. But I'll consider how I think I'd feel if my work put a rapist on the streets. My answer is, it depends. Why was this rapist not put away? Was there some egregious constitutional violation? Then I feel great. Was the admissible evidence lacking? Then I feel great. Did the prosecution present a solid case that I managed to demolish using legal sophistry, mystic incantations, and magic toads? I don't think I'd feel great. Probably just satisfied, like "Okay, well, my job was to present the best defense I could, and I did, so I'm satisfied." I'm not nearly as concerned about feeling bad for getting a guilty person acquitted than I would feel for putting an innocent person, or a person guilty of a bogus crime, away. I don't know if I agree with the precise math of the "better to let ten guilty men go free than to put one innocent man in jail" maxim, but I do know that I find the innocent being jailed MUCH more distasteful than the guilty avoiding punishment. As for the rapist, while I might be okay with his being free, I could still hope like hell that he tried to rape again but this time his potential victim was carrying and managed to put a bullet through his septum.

Why don't I get this?

What a defense lawyer knows and what a jury knows can be two very different things. How would a defense attorney know but a jury not? The client could tell the lawyer, "No, it wasn't Owens. I did it." At trial, however, the client refuses to take the stand and the jury is left to decide without a confession whether it was the defendant or Owens.

But you do plan on deploying it sometime soon, right? I ask because, if true, that should alleviate the need for any further discussion on this topic.

I thought as much, I was just seeing if we were on the same page, as well as trying to place this in its overall context (hence the six scenarios). However, I think I should restrict further discussion to the scenario raised. Yeeeah, I should have known better than to start that one here. I didn't even need the example, but instead of saying the example wasn't important I should have just deleted it like I thought to do. At that point it was a sunk cost. Oh come on, you couldn't find another metaphor to squeeze in there? Seriously, though, you don't have to worry about offending me by asking such a question. I think we know each other well enough to know that we're both civil, intelligent people. I take such a question from you as an honest inquiry. Not only that, but if you think defending the guilty is immoral, I almost expect the question. Like that scene in Atlas where Francisco says he expects Dagny (or Rearden?) to hate him under her (or his?) current principles. Something like that. I don't think "the client's interest" is the way to put it. I see value in making the government prove its case. "Beyond a reasonable doubt" has to mean something. While I might know that my client is guilty, what does the fact-finder know about it at the outset? Ideally, nothing. And what should the fact-finder know by the end of the trial? Only what they've seen and heard in court, under the rules of evidence, Constitution, etc. Say, for example, a key piece of evidence is excluded, but a juror improperly reads a newspaper article about it, tells the other jurors, and they convict the defendant based on that even though the evidence presented to them was otherwise lacking? Would you say that was justice because a factually guilty person was punished? I don't call that justice, because the process was tainted. I would not be comfortable with a rule that said "A jury may not consider outside evidence unless the defendant is factually guilty." That puts the cart before the horse, because the point of the jury is to make guilt determinations, and the point of evidence rules is (generally, cf. the exclusionary rule) to make sure the jury gets accurate facts. So, when someone is factually guilty but will not plead guilty, what is my job? To get my client acquitted? Well, yes, on a certain level. But the larger goal, the purpose behind my job, is to make sure the government does its job. If I know someone is guilty, but the government doesn't have enough evidence, my job is to make sure people aren't convicted when there isn't legally admissible evidence beyond a reasonable doubt. Well, with tax cases that's a moral no-brainer. Contracts and wills make me mildly nervous, though, because you sometimes have either a bad law or bad facts. What do you do if you're general counsel for Panera Bread and they ask you to argue that a burrito is a sandwich? Well, I have no intentions of becoming a prosecutor (anymore--as you know I was considering it at one point) because I don't think I could stomach prosecuting bogus crimes. So instead, I'll pass the hot potato to Vern if he wants it.

Do you know what, if any, other legal area he went to practice in? Which probably means that being a prosecutor = sometimes acting immorally, doesn't it? A prosecutor is going to do probably hundreds of cases a year, and I'd guess that for at least one of them he would have reason to believe the defendant is innocent. I don't think it's straining imagination to suspect that his boss might make him prosecute such a case or be fired. And there's no going solo as a prosecutor, except maybe in obscure South Dakota towns with 7 people.

What of the scenario when the attorney knows the client is guilty but the propriety of the law is ambiguous? The following example comes to mind: John unquestionably commits statutory rape. The girl is 16 but the law prohibits sex with anyone under 18. She is mentally capable of making the decision to have sex, but the law prohibits introduction of evidence to that effect. Is anyone certain of the propriety of this law? I am not. On the one hand, setting a bright-line age requirement is quite the expedient measure that keeps us from violating the fallacy of the gray area. On the other, justice will not be done in some cases, like this one, where the purpose behind the law (ensuring that people are punished who force someone into sex who cannot consent to it) is not fulfilled. The example isn't all that important, though if you want to comment on it, please do. The point is just to raise another scenario, that in which the attorney knows of guilt but the law's propriety is an open question. I'm guessing, DO, in light of previous comments of yours about lenity, that you would say defending the case is kosher. Not speaking for you, mind you, just predicting. Here are the scenarios we have: 1. Attorney knows of guilt and law is proper 2. Attorney knows of guilt and law is ambiguous 3. Attorney knows of guilt and law is improper 4. Guilt is ambiguous and law is proper 5. Guilt is ambiguous and law is ambiguous 6. Guilt is ambiguous and law is improper Refine this as you will. It seems like most of you are saying that the attorney should not defend the case under scenario 1, and I'd guess most of you would say he could under scenarios 2 through 6. Unfortunately for me and for anyone else who has to answer these questions, scenario 1 comprises a great many cases and will almost certainly appear regularly in any job working for another. By the way, Luke, that appeal I won (resulting in reversal of the defendant's conviction)? Scenario 4. The law was proper (clearly it should not be okay to vandalize another's restroom), but I did not know whether the accused did it.

With respect to not taking a case when you know the person is guilty and he refuses to plead as such, what are the implications of that? Assorted thoughts on this and another issue: 1. You will have a difficult, if not impossible, time getting a job working for somebody else. I cannot imagine a firm or public defender that would give you the option of refusing cases on such grounds. 2. This leaves you the option of working for yourself. Such an option is a risk as it is, and would become even more so were you to restrict your practice in such a fashion. 3. Such a practice would probably damage your reputation among judges, making life more difficult for your legitimate cases and for getting appointed to them by those judges. 4. Is there anyone here who thinks it's moral to be a prosecutor but not for a defense attorney to defend a factually guilty person? If so, why?

For context, I start by pointing out that I agree with your statements here, except possibly the last. I say possibly the last because I am not sure whether I think that statement is accurate. If you value making the government prove its case more than you value the guilty being punished, then you ARE working for the result that you want, because the result that you want is making the government prove its case. It's a question of which you value more, which can vary depending on the context. Watch. "I want all guilty people to be appropriately punished." Okay, I have an easy way to do that. Convict everyone in existence of every crime on the books. That way, everyone who is guilty will be punished. "But I don't want the innocent to be punished." Okay, I have an easy way to do that, too. Don't convict anyone of anything. That way, no one will be wrongly convicted. Clearly both of these scenarios are ludicrous. But the point I'm trying to illustrate is that notions like "beyond a reasonable doubt" are (hopefully) parts of the result that you want, which is, or rather, ought be, an objective justice system that maximizes its achievement of accurate fact-finding. And how do you do that? Rules. A major example comes to mind: the exclusionary rule. The purpose of the exclusionary rule is not accurate fact-finding. In fact, the exclusionary rule is opposed to accurate fact-finding because it disallows the introduction of inculpatory evidence. What do you mean I can't introduce this knife that matches every nook and cranny of the deadly wound and is drenched in what is scientifically proven to be the victim's blood?!? What I mean is that we can't have cops breaking down everyone's doors to find evidence of crimes. What I mean is that you need "probable cause" to get a "search warrant". It's weak as you phrase it, but it doesn't have to be. One of the beautiful things about the "mistaken identity" theme, or the hook of a song, is simplicity. Applying that to the theme I quote, make it an issue of two words: "principle" and "values". Like so: "This is a case about principle, about values. Seems strange, doesn't it? You haven't heard a thing about values this whole trial. You've heard from cops, and people who saw things, and doctors who tested stuff. But make no mistake friends, our principles, our values, are the most important pieces in play today. You see, we believe in liberty. In the idea that a person's freedom should be cherished, should be protected. And we believe that if you want to take someone's liberty away--to rip someone from their family, to keep them from making a living, to take someone from their couch where they enjoy a ball game or a laugh after a hard day's work--that you better be darn sure they did something wrong. The value of liberty is important to us, and that's why the judge is going to tell you that before you can take John's liberty away, you had better be convinced beyond a reasonable doubt that he did something wrong. What does that mean, "beyond a reasonable doubt"? Well, it means that if you look at all the evidence you've heard--all the evidence--and you still aren't sure that John did what the Government says he did, and your uncertainty is reasonable, then you must say not guilty. . . ." Don't you think that's much stronger? If I were arguing that to you in the jury box, wouldn't that convince you (who I know to be a man of principle), or at least get you to think long and hard before you voted guilty? You don't have to tell the jury anything. If you know your client will testify falsely, you have to try to dissuade him, and if that doesn't work, you must refuse to offer the false evidence. If you don't know he will testify falsely but upon his testifying you realize that it was false, Rule 3.3 requires you to take remedial measures including disclosing his perjury to the court if necessary. Point being, the ethics Rules flat out prohibit knowingly offering false evidence. Didn't you get a better grade than me in Professional Responsibility? Dude, I told you. They're on the counter in the bathroom by the toothbrushes. I pose to you an additional question: What about sentencing? Assume that my client did plead guilty and that I now must make an argument for a sentence. If the law is proper, can I argue for something less than the maximum, assuming that the maximum itself is proper? This topic reminds me of that situation in law school where we'd read the court's opinion and think it was right, then read the dissent and think it was right, and then end up banging our heads against the wall. That's all for now. Here's to a fulfilling, informative discussion!

For the record, KendallJ, I deleted a post of yours in this thread that appeared to be a duplicate. Check the trash can. Don't say you weren't notified. And the post I just posted also duplicated itself, so I deleted one of them. Excuse me while I notify myself. (The comedy is just flowing today.)

I support this idea, and I wonder if the software could be made to automatically generate a response whenever a post is deleted. Computer people?