Will a moral attorney defend a guilty man?

[Moebius]

The main issue with just having the trial dealt with by a single judge or a small panel of judges is that it leaves open the possibility of someone bribing the judge (or the judge just being a numbskull). Now, this isn't to say that judges are likely to be dishonest (or stupid), it's simply been part of the American system of government to always have some kind of check or balance on anyone in power that can make any sort of decision to, if not eliminate corruption, limit the scope of abuses. I.e. American government is primarily constructed to get in its own way. I guess the theory is that when you have a corrupt situation, all it takes is one honest man to blow the whole works to hell or at least expose it.

If you can bribe a judge (who has a lot more to lose if caught), then it should be far easier to bribe a professional juror. I mean as it is jurors are still bribed or threatened from time to time.

If the judge (who is appointed with an extremely high criteria) can be a numb skull, then it should be far more likely for a professional juror to be a numb skull.

I mean, the whole point of jurors is that it's random (although not really, since both sides of a case get to pick and choose). If we're going to do away with random juries, we might as well get rid of the jury system altogether. Like I said most countries in the world do not have a jury system.

The idea in the past has been to have a jury of random ordinary citizens that provide a check on the judge. The problem with this is that random ordinary citizens don't necessarily know or understand what the law is or how it applies or what the rules of evidence are etc. So the jury is actually becoming the mechanism for abuse of the system at this point.

Yes an ordinary man does not have the knowledge to necessarily apply the law to a case, especially when it's something highly technical -- for instance a case about software codes or medical malpractice. I agree that it would be far easier to just have someone trained in the relevant field to weigh the issue.

[Groovenstein]

1. The Federal Rules of Evidence, as well as many, if not all, state rules of evidence, permit a lawyer to impeach a witness by presenting to the jury any conviction that the witness has had for a crime relating to the witness' lack of truthfulness. So, I know that I can make said witness look like they are lying. Is it okay for me to create an argument that the witness is probably not telling the truth, even if I KNOW that the witness IS telling the truth?

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.

[JMeganSnow]

If you can bribe a judge (who has a lot more to lose if caught), then it should be far easier to bribe a professional juror. I mean as it is jurors are still bribed or threatened from time to time.

You're assuming that there would be one professional juror. How about twelve, and you have no idea who they're going to be before they show up for court?

The idea isn't to make corruption, abuses, and mistakes impossible but to make them exponentially more difficult. Are you going to say that because errors are inevitable with any system a, say, hospital should dispense with their quality assurance program and just leave it to the harrassed, overworked doctor to check that the blood he's about to put in your arm is actually your blood type? Wouldn't it be safer to have three or four people look at it on the off chance that ONE of them is paying attention?

[Wotan]

I feel kind of goofy for coming in this late in the thread, but I would actually say that there's nothing immoral about defending a guilty person in a court of law.

I think you're looking at it from the perspective that the attorney's job is to provide "justice" when it really isn't. The defense or prosecution attorney is there to make sure that the procedural rights guaranteed by law are being carried out. Dispensing justice is the job of the judge or jury, not of either attorney. Neither is it the attorney's job to guarantee their clients' interests but to advise the client on their procedural rights and how to go about making the best use of them.

If I were an attorney faced with defending a man that I knew to be guilty I'd do the best job that I knew how because I'd know that I am serving the idea of justice in the long-term, overall sense by serving the machinery that in its turn serves justice. The finding of guilt or innocence is out of my direct control, but seeing to it that the rules are enforced, is.

If the idea of serving the machinery of justice rather than justice itself is onerous to you, don't go into law. If you think the machinery is so corrupt that you could not bear to function under it's artificial rules, then maybe you need to work on reforming it instead of serving it.

I think this is the conventional and popular view of America's "adversarial" system of law. And it has much to recommend it, on the surface. But ultimately I think it's very amoral and wrong.

Ideally, I think all prosecuting and defending lawyers need to bindingly legally swear to put the interests of justice ahead of their own case. This means, among other things, no lies, fake evidence, or specious reasoning. No prosecutor should ever prosecute someone he strongly believes to be innocent; nor should any defender ever defend anyone he strongly believes to be guilty. How could you ever explain this to your kids? If this upright and noble behavior hurts the career of either lawyer then too damn bad. The "system" needs to be changed, then. It seems indefensable to justify both "officers of the court" working hard and well to advance the cause of injustice and evil. And "two wrongs don't make a right" or somehow balance out in our adversarial legal system.

In many or even most trials the guilt of someone is unknown to both attorneys. Both sides present alternative narratives, and someone impartial trys to accurately weigh and judge. So the adversarial system works out pretty good -- provided neither lawyer cheats or lies or fraudulently overstates his case.

There's nothing wrong, so far as I can tell, to argue thus: "I don't know if defendant X is guilty or not, but here's why I think he is and why I'm bringing this case..." or (conversely) "I don't know with certainty either, but here's some pretty good reasons to think he isn't..." If this last less-than-enthusiastic defense of someone hurts the defendent then so be it.

He shouldn't have committed the crime in the first place. Or he should have lied better to his lawyer beforehand. Or he should have hired a sleezier lawyer. But even so, the system can still defend itself, in my view, by seeing through such ruses. Juries and judges will usually notice when the defending lawyer doesn't seem fully informed or completely honest. So too with overzealous prosecutors.

Ultimately I don't think it's right to just trust to "the system." Those lawyers for OJ were flat out evil in my view. Would they have also defended Stalin or Hitler!? It seems plain wrong -- when terrible evil is done in the "justice" system -- for someone to then blame "the system," while rationalizing and excusing his own energetic and triumphant efforts in the service of inhumanity, injustice, and immorality.

Edited May 23, 2007 by Wotan

[JMeganSnow]

Ultimately I don't think it's right to just trust to "the system."

No, it's not, ultimately. I think it is moral to work within the adversarial system, assuming you're stuck with it in the short term, as long as you keep pushing for reforms.

[Groovenstein]

There's nothing wrong, so far as I can tell, to argue thus: "I don't know if defendant X is guilty or not, but here's why I think he is and why I'm bringing this case..." or (conversely) "I don't know with certainty either, but here's some pretty good reasons to think he isn't..." If this last less-than-enthusiastic defense of someone hurts the defendent then so be it.

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

A lawyer shall not . . . in trial, . . . state a personal opinion as to . . . the guilt or innocence of an accused . . . .

[Groovenstein]

nor should any defender ever defend anyone he strongly believes to be guilty. How could you ever explain this to your kids?

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.

[RationalBiker]

How could you ever explain this to your kids?

I don't think this is a fitting benchmark for a moral compass. There are many things that are just and proper (and fun) that one cannot "explain to their kids" in ways they would necessarily understand.