Do we have a "right" to have our rights defended?

[BryanG]

I thought it meant the government could not deny you legal representation, not that it had to provide you legal representation.

I don't know how far back in US history the idea of "Public Defense" goes - was it around at the time of the founders?

[JMeganSnow]

How, exactly, does legal counsel protect you from corrupt judges, bribed juries, falsified evidence, or whatever?

Criminal justice (when you get into things that are legitmately crimes) is not that complicated. I mean, what do you need to know?

1. Courtroom procedures and protocol (don't address the judge as "hey, bud", don't speak until you're requested to)

2. The charges being brought against you

3. The evidence for those charges and how it was obtained

4. What evidence constitutes "sufficient proof" for those charges

5. Some miscellaneous stuff about searches, seizures, etc.

The real weight in a criminal trial comes down on the prosecution, who has to prove you committed a crime. It's ten thousand times easier to poke holes in someone else's argument than to create one of your own.

[DavidOdden]

I don't know how far back in US history the idea of "Public Defense" goes - was it around at the time of the founders?

1963: Gideon V. Wainwright.

[Captain Nate]

That might be a valid point. Could you give me maybe a half-dozen citations of such replete cases, or at least a couple?

At the moment I cannot, as my texts are not with me. But I can assure you, public defenders were established for a reason.

Of course, my point was not about the evils of our current rights-ignoring system, but rather whether there is a fundamental right to force someone else to pay for your legal problems, if you are charged with a crime.

I don't believe you have the right to force someone else to pay for your legal problems, but I think a system of public defenders would have to be established under an Objectivist court system, with some form of voluntary funding or pro-bono work.

Why do you think such a thing? What would it even mean to have a "publically-funded Objectivist system"?

The same that means we have "publically funded judges." Some system has to be put in place to fund judges salaries, and I would argue public defenders are as much as part of the criminal justice system as the judges and both have a role to play in the defense of individual liberties from the prosecution of government.

1963: Gideon V. Wainwright.

Actually, public defenders go back far further than that. That marked the beginning of the Supreme Court's mandating them in certain circumstances.

[DavidOdden]

At the moment I cannot, as my texts are not with me. But I can assure you, public defenders were established for a reason.

Okay, so when you get reconnected with your texts, can you find the cases of court-provided counsel mitigating what would have otherwise been a miscarriage of justice? I don't doubt that there was a "reason" for court-provided consel, I just dispute whether the reason is valid. So of course I'm very interested if you have some evidence that there is a valid reason.

I don't believe you have the right to force someone else to pay for your legal problems, but I think a system of public defenders would have to be established under an Objectivist court system, with some form of voluntary funding or pro-bono work.

I'm okay with that up to the point that you use the word "established". As a charity it's a great idea, just like blood banks and toys for tots: I just don't see that providing for the welfare of the indigent is the business of government. If you mean "established" in the sense that it would be a good idea for someone to set up some kind of disaster-relief organisation or free-attorney service, I have no problem with that.

The same that means we have "publically funded judges." Some system has to be put in place to fund judges salaries, and I would argue public defenders are as much as part of the criminal justice system as the judges and both have a role to play in the defense of individual liberties from the prosecution of government.

As I mentioned, that's something that the judge can do, so I don't see the necessity of having a separate free attorney.

[jrs]

Or are these procedural "rights" merely privileges mislabeled as rights?

I would divide rights into substantive rights and procedural rights. Substantive rights directly protect or otherwise benefit the right holder. Procedural rights are internal rules of the government created by it for its own purposes. For example, they might be intended to protect the government from accidentally violating someone's substantive rights. Or they might be intended to help expose corruption in the government. Or they might be intended to create the appearance of "fairness".

In some legal systems a court might consist of a single official. In our system, the functions of the court have been divided among several officials, including: (1) the judge is an umpire who oversees the whole trial process and decides questions of law; (2) the prosecutor argues the facts and law which tend to implicate the defendant; (3) the public defender argues the facts and law which tend to exonerate the defendant; (4) the jury decides questions of fact; (5) the bailiffs use force when necessary to maintain order; (6) the court reporter keeps a record of everything which is said; and (7) the clerk keeps track of the papers and items of evidence.

The prosecutor and public defender are distinct from the judge, not merely to reduce his work load, but to avoid a conflict of interest and prevent the judge from becoming personally involved on one side or the other. So the public defender is not merely a helpful and knowledgeable friend of the defendant; he is an officer of the court whose duty is to prevent the court from erroneously convicting an innocent man or imposing excessive punishment.

... what is the Objectivist principle on compelling witnesses to testify, or appear in court? Is this an immoral use of force?

Yes.

[Groovenstein]

. . . Of course, my point was not about the evils of our current rights-ignoring system, but rather whether there is a fundamental right to force someone else to pay for your legal problems, if you are charged with a crime. . . .

It's the "charged" part with which I have an issue. If we are to hold on to the innocent until proven guilty idea, then the fact of being charged can't mean you're guilty. Let's get back to the basics for a second. This will help me understand the root issue.

1. Do you think that the guilty should pay for the costs associated with bringing them to justice?

2. Do you think that the not guilty should not pay for the costs associated with bringing them to justice?

I guess it pretty much hinges on these questions.

Also, you've said in this thread some things about the judges being the protectors of individual liberties. I recall you having advocated in another thread in favor of an inquisitorial system. Care to expand on that? Particularly, I'm interested to know whether you think an inquisitorial system is just better than an adversarial one, or whether you think an adversarial system is somehow morally wrong. I'm wondering if that might be relevant to this issue.

[DavidOdden]

1. Do you think that the guilty should pay for the costs associated with bringing them to justice?

Yes. I would stipulate that the liability should be "reasonable" and not open-ended, i.e. if it would really only cost $1,000 to prosecute the case but the DA decides that since the defendant is Bill Gates he can afford to mount a lavish "no possibility of acquittal, every square inch nailed down" $10 million prosecution, the defendant should not be held responsible for such prosecutorial abuse. That aside, yes.

2. Do you think that the not guilty should not pay for the costs associated with bringing them to justice?

There's an interesting supposition there, that by being acquitted, they are brought to justice (suggesting that they are somewhat shy of justice before the acquittal). Anyhow, I get the intended point. The not-guilty should certainly have no obligation to pay for the cost of investigating or prosecuting, or the cost of the impartial dispensers of justice. What is not clear to me is whether they should have a claim against the government for costing them money, in the form of attorney's fees. It would also be wrong for OJ to present the state with a bill for about $10 million of his defense costs. There should be something like equity between the two sides, but not actual equality, so the prosecution's decision to pursue a particular case in some fashion has to be objectively and I would say publically justified with reference to the function of government, but the individual's decision to spend as much or as little of his own money as he wants to in defense of his actions needs no justification.

Also, you've said in this thread some things about the judges being the protectors of individual liberties. I recall you having advocated in another thread in favor of an inquisitorial system. Care to expand on that? Particularly, I'm interested to know whether you think an inquisitorial system is just better than an adversarial one, or whether you think an adversarial system is somehow morally wrong. I'm wondering if that might be relevant to this issue.

I don't quite get the distinction, since the practical is the moral. Actually, my main objection to the current structure is the jury system. Most of that stems from the fact that law is now so incomprehensible that the reasonable man hasn't got a clue what to do, and there are fewer and fewer reasonable men in the jury pool. My second objection is semi-forensic, namely that it can now be very difficult to determine simple matters of fact (for instance, I argue that jurors cannot competently evaluate voiceprint evidence). I have no objection to two opposing attorneys going at it in court, but I would also support impartial judges taking a more active role in the determination of justice.

[Groovenstein]

Yes. I would stipulate that the liability should be "reasonable" and not open-ended, i.e. if it would really only cost $1,000 to prosecute the case . . .

Good stipulation. Then we get think about to what standard "reasonable" translates. My guess is courts would be deferential on this, i.e. something like costs would only be overruled if arbitrary and capricious, and the burden would be on the convict.

Since we agree that the guilty should pay for their costs (though we perhaps need further qualifications), we now must determine when. I say that they should not have to pay until they are found guilty. Anything else flies in the face of the presumption of innocence.

What is not clear to me is whether [the acquitted]should have a claim against the government for costing them money, in the form of attorney's fees. It would also be wrong for OJ to present the state with a bill for about $10 million of his defense costs. . . . but the individual's decision to spend as much or as little of his own money as he wants to in defense of his actions needs no justification.

What about the plan I outlined earlier? The state provides the option of an attorney to all. If you decline it, thus providing your own lawyer or going pro se, you can no longer ask the state for representation.

Whether they should have a claim against the government for attorney's fees, I'm inclined to think some sort of arbitrary and capricious/clearly erroneous/malicious prosecution type standard is appropriate. I can't see holding the state liable when it reasonably brings a case. At least under a proper government. (Given today's criminal laws, I think things that would deter prosecutions might be good, so maybe there's an argument for having a looser standard.)

I'm having trouble reconciling the OJ sentence with the part following the ellipses. OJ can't present the state with a large bill, but he needs no justification for spending a large bill? Please explain what I'm screwing up.

I don't quite get the distinction, since the practical is the moral.

What I failed miserably at saying can be illustrated by example. Consider three methods of financing a government: lotteries; asking for donations; taxes. Is your evaluation of inquisitorial versus adversarial more like the relationship between lotteries and asking for donations, i.e. both could be morally proper methods of financing but one is more effective than the other? Or is it more like the relationship between lotteries and taxes, i.e. one could be morally proper and one could never be morally proper?

You implied that either would be proper:

I have no objection to two opposing attorneys going at it in court, but I would also support impartial judges taking a more active role in the determination of justice.

[DavidOdden]

What about the plan I outlined earlier? The state provides the option of an attorney to all. If you decline it, thus providing your own lawyer or going pro se, you can no longer ask the state for representation.

I suppose, but this will probably cost more. Aarrgh. The main problem is that the state can't just blanketly "provide an attorney", there also have to be some kinds of limits on what the state-provided attorney will do for you. Budgeting $40,000 a year for the PD in a major metropolitan area probably means that the accused gets under an hour of attorney time. On the assumption that the reason for having state-funded attorneys for all is to protect the rights of the accused, the budget for the PD cannot be perfunctory -- it should probably be about equal to that of the prosecutor's office. You down with that?

I'm arguing that the state should not fund extensive and elaborate defenses. If the state will provide $20,000 to mount a prosecution of fraud, then the state should provide the same $20,000 for the defense. And if the state provides a million dollar prosecution, it should provide a million dollar defense. The underlying question is whether the state should conduct a million dollar prosecution.

For the most part, it seems like a simple accounting matter: Plan A is that you can hire your own attorney and if you prevail in court, you get to recover your expenses from the state; Plan B is that the state provides the attorney for you, and if you lose in court, you have to reimburse the state. There is the further fact, though, that you can't get blood from a turnip, so at some point the state will lose money. Anyhow, this isn't a simple matter, and I don't really have a clear position, as I guess you can tell.

Whether they should have a claim against the government for attorney's fees, I'm inclined to think some sort of arbitrary and capricious/clearly erroneous/malicious prosecution type standard is appropriate. I can't see holding the state liable when it reasonably brings a case.

I fortunately ignored most of the Peterson trial, but what I understand of that case is that the state put on an expensive prosecution which could not be matched financially by the defense. I don't see any caprice or malice here, just the awesome power of the state to pursue a case at considerable expense. It's not clear to me whether this is a good thing or a bad thing, but the huge financial asymmetry between the state's purse versus the individual's purse has to be considered in constructing an objective law governing the reimbursement / state-provided attorney issue.

I'm having trouble reconciling the OJ sentence with the part following the ellipses. OJ can't present the state with a large bill, but he needs no justification for spending a large bill? Please explain what I'm screwing up.

What I'm referring to is the difference between prosecution by the state where decisions to spend a certain about of money have to be justified with reference to the function of government (to protect the rights of all of its citizens), versus the fact that the individual only needs to justify to himself spending a certain amount of money and should do so only by reference to their personal interest. In other words, if OJ wants to spend his $10 million, that's his business.

You implied that either would be proper

Right: I don't see any impropriety in jury trials, judge-rendered decisions, the inquisitorial system or the adversarial system. By contrast, trial by ordeal would be improper, as would trial by your sworn enemies.

[HaloNoble6]

Yes.

Excuse me, but that was a question about the Objectivist position, and you don't speak for Objectivism. Can you quote a passage with proper citation that refers to the compelling of witnesses by a court, given possession of objective proof of having witnessed, as being immoral? Edited December 19, 2005 by Felipe

[HaloNoble6]

Forgive me for jumping into the middle of this meeting of Odden, Stein & Partners, but I feel the urge to state the obvious: there is a difference between a man’s natural rights and the “rights” afforded to him via contractual agreement; the latter stemming from the former.

When a man decides to make his life in the domain of a particular state, he enters into an agreement with the state. This agreement affords him contractual rights, of which here in the U.S. include, but aren’t limited to: the right to a speedy trial, the right to call on witnesses in one’s defense, etc. So long as the terms of agreement are respected, the contract is valid, and in this loose sense a man has the right to have the terms of the contract respected, such as right to speedy trial etc.

As our Founding Father’s noted, a sovereign people have the right to erect any sort of government they wish, so long as the government has the sanction of all of the people. Obviously, however, there is a standard for judging what sort of government is best suited for a people wishing to be free, not just wishing to govern at their whim. What is it? In my view the answer is not a straight-forward one, and our Founders spent years studying history to discover it. Surely a state must respect the sovereignty of the people, but it also must be structured to not be easily susceptible to corruption. Hence three of the major cornerstones of our government: a government of law not of men, separation of powers and checks and balances. Here there appear to be two standards by which to judge a government meant to govern a free people: Are the natural rights of the people truly respected under this government (does the rule of law consist of the rule of objective law)? And does this government have built-in mechanisms to fight off corruption?

There thus appears to be two different ways to gauge the validity of any procedural rights afforded to man by his sanctioning of the state: Is it a necessary consequence of his natural rights? Or is it a necessary consequence of the need to ensure justice is long-lived (by instituting corruption-curbing measures)? Which brings me to a particular question being discussed here in this thread: Do people have a right to a lawyer? To this I ask: Would a so-called right to a lawyer stem from man’s natural rights, or from the need to curb corruption?

For example, the right to a speedy trial, as noted by our resident Hound, stems from man’s natural rights. But the right to have laws passed by the Senate only with a majority or supermajority vote, is a mechanism that stems from our government’s built-in anti-corruption measures.

Perhaps a right to a lawyer would serve to curb corruption? Anticipating one day that objective law could be made confusing and contradictory and difficult to understand, thus making it difficult both intellectually and financially for the regular layperson to defend himself, perhaps creating an independent government-associated group of lawyers with a “check” on the judiciary could serve to curb such a thing. This might be adding a crippling layer of bureaucracy, but I’m not so sure. Either way, what justifiable need does O., S. & Partners see as necessitating the existence of a government-associated group of lawyers?

As a side note, I don’t agree with senior partner Odden’s following remarks:

A person who has been merely accused of a crime does not deserve to lose his rights because of that fact. Were it not for being accused of the crime, the man would, in a free society, be able to walk away freely and not suffer the threat of having his freedoms curtailed. It proves necessary, in a law-governed society, to suspend normal rights under extraordinary circumstances, when you have good reason to believe that a person has violated the rights of another. Justice requires that the violation of the accused's rights be minimal. The right to a speedy trial is a corollary of the right to your life -- it states the extent to which that right may be curtailed. It is a right, because it protects the individual from unjust violations of an individual's right to his life.

It’s not a mere accusation, but verifiable proof indicating grounds for suspicion, that lands a man in jail awaiting trial. His rights aren’t being violated—he sanctioned a government’s power to do such a thing by choosing to live in its domain. By entering into a contract with the state, he sanctions the notion that should the state possess justifiable evidence implicating him in a crime, it has the power to bring him in and hold him for a time being. Under a proper government, there is no such thing as a justifiable reason to violate someone’s rights. Natural rights, under no circumstances, can be violated.