Man am I ticked OFF!!!

[Charlie_Iliff]

Charles:
<font color=red>Now, extollers of the virtues of the legal system, defend it on this hypothetical case, and this one alone--don't introduce the possiblity that he 'might' be innocent because he's not.</font color=red>
You and Rick and Harv are articulating a debate that is conducted formally and informally at every law school in the country on a nearly daily basis, not to mention at formal and informal meetings of lawyers throughout their careers. One of the toughest questions facing my friends in the criminal defense bar (I do civil trial work only) is the question of the balance among the duty to the Court, the duty to client and the duty to society. Those duties often diverge and even conflict in ways that may be obvious, as in your distilled hypothetical, or in ways that are very subtle.
Fortunately, in the vast majority of those cases in which guilt is a foregone conclusion, the defense lawyer's function is to guard against prosecutorial excess, while shepherding the client to a guilty plea and sentence. If the prosecution screws up, however, giving the lawyer the opportunity to get the guilty client off, an argument can, and I submit must be made that the lawyer has the duty to do so. And it is his duty to the Court and society, not just the guilty - lucky - client. If he does not do so, prosecuters will not be held to the absolutely essential rules that must be enforced to protect the innocent. Even when the rules seem to have been followed, we have a distressing number of wrongly convicted people.
Yesterday, I read of an agreement by a retarded woman to a reduction of her manslaughter sentence to time served, thus foregoing her right to challenge the original conviction, which the Court had determined to have been improper. A good practical, economical, result, right? No retrial to an innocent verdict. No further cost. The problem is that this woman and two of her relatives were first charged with capital murder, and browbeaten into pleas to lesser offenses. They admitted to manslaughter because it avoided trial, which they were likely to lose because they were retarded and poor. The kicker now seems to be that the crime never occurred at all. The baby which the prosecuters believed to have been murdered was never born. The alleged mother, who was accused of having the baby and participating in its murder had had a tubal ligation, which was medically shown to be effective in a test done a year after her guilty plea.
Those people were "clearly guilty" in the minds of some. Their lawyers had a duty, and still have the duty to try to put things right, even if they were sure at the time that they were representing guilty people.
As an aside, after every notorious crime, police receive a number of confessions that they soon know to be false. Although it doesn't answer your hypothetical directly, one factor to add to the mix is that even the defendant who tells his lawyer that he is guilty may not be. Only in a hypothetical can guilt be assumed without question.
None of the questions you pose are easy. Lawyers are aware of them, and sometimes haunted by them. Part of what makes the system work is that those questions are constantly posed, debated and analyzed, if not answered to everyone's satisfaction.

 

[knucklehead]

Wow - and I was thinking that my original post 'way back in the beginning of this thread might've been a little too political.

I have to respond to one thing, at my own peril. All killing ain't murder. Murder is murder. This is insanely simple, unless rationalized to the point of obfuscation. Which we regularly do.

 

[rmorgan]

Charles--

I second Charlie's points. Assuming your facts (and also assuming that there has been no confession to anyone but the lawyer), the lawyer's obligation is no different than in a case where the defendant does not admit guilt, except in two important ways: She cannot put the client on the stand to deny his guilt, and she may report to the authorities any threat to engage in further criminal conduct. If the lawyer can't defend the client based on her knowledge, then she must terminate the relationship.

That said, what would you have that lawyer do, other than ensure that all avenues were pursued and all arguments made in support of the client's position? Throw the case, in violation of the ethical rules? Go to the prosecutor with the information, in violation of the attorney/client privilege (and the ethical rules)? What if the client lied about his guilt for whatever reason? What if the arrest resulted from the use of an illegal wiretap by a rogue police officer?

The short and simple is, very few tried criminal cases lead to acquittal. Prosecutors rarely charge someone they can't convict. And the overwhelming majority of criminal cases lead to a plea. Guilty people frequently don't get caught, but they rarely walk after they are caught, absent occasional improper actions by law enforcement personnel or prosecutors. But I respectfully continue to believe that the law would really[/] be an [censored] if it did not require its practitioners to advocate zealously for all their clients.

 

[cp1969]

Good afternoon, all.

I don't get to play around on the internet during the day, so I have to wait until I get home to respond. The 'ganging up' is fine; I'm used to it. In fact, I expect it when taking a position that flies in the face of what passes for conventional wisdom. But that's how to challenge people to think about things they have accepted without question. (I'm not talking about the lawyers here--I'm sure you've had this debate many times.)

First, I am not and never was talking about a case where someone is "....."clearly guilty" in the minds of some." I'm talking about the case in which is the defendant is in fact guilty (not a perception or opinion--he IS guilty), and if freed is almost certain to commit the same crime again. Someone described it as weighing the duty to defendant versus the duty to society, which is about as well put as it can be. The legal profession has a duty to society which in my opinion, is not well served by using legal chicanery to help guilty persons avoid justice. I would think that the overall goal for everyone in the legal profession would be to see that justice is served instead of verdicts boiling down to a punctuation contest.

All the more reason why it's a good thing that I never became a lawyer. Wouldn't have made a dime at it.

 

[Charlie_Iliff]

<font color=red>I'm talking about the case in which is the defendant is in fact guilty (not a perception or opinion--he IS guilty)</font color=red>

Determined how and by whom?

 

[cp1969]

By me--this is my hypothetical case; I get to set the boundary conditions. In an actual case, it could be the defendant freely admitting guilt or he was caught in the act.

 

[leoniru]

Harv;

Scoring low on an IQ test does not necessarily indicate retardedness, nor does it necessarily indicate an inability to know right from wrong. Many just plain 'dumb' people score low on these exams. The data show that crimes of violence--in particular murder, rape, and assault, are all highly correlated with low IQs. And while we're at it, let's not pretend that we even remotely understand the concept of intelligence, let alone having an absolutely reliable and accurate means of measuring it. This ruling will in effect empty out death row to a large extent.

As far as your gay son goes, he sounds like an upstanding individual, and in all liklihood, not someone who targets children. You said it yourself when you stated ".....he just likes MEN....(not children)" I have no problem with people like him.

With regards to your supporting NAMBLA: perhaps you're not doing so directly, but chances are that you're supporting them indirectly by your support to "...quite a few of the gay and lesbian groups." Publicly the mainstream gay organizations distance themselves from NAMBLA; however there is evidence to the contrary---leading mainstream homosexual newspapers and magazines such as 'The Advocate', 'Edge', 'Metroline', 'The Guide', and 'The San Francisco Sentinel' have not only published pro-NAMBLA articles and columns, but editorialize in favor of NAMBLA and sex with children. NAMBLA also had membership in the International Lesbian and Gay Association (ILGA).

You say that the vast majority of pedophiles are relatives and/or family. That may be accurate, but it has been shown that MOST PEDOPHILES CONSIDER THEMSELVES TO BE **** OR BISEXUAL.

Jim S.

 

[Charlie_Iliff]

Charles:
Accepting the establishment of guilt <font color=red>By me--this is my hypothetical case; I get to set the boundary conditions. In an actual case, it could be the defendant freely admitting guilt or he was caught in the act. </font color=red> also answers your original challenge. The lawyer's role would be confined to advising as to a guilty plea, or making sure at trial that the prosecution demonstrated the guilt appropriately, watching as the trier of fact returned the guilty verdict, and then arguing for a fair sentence.
Guilt as an absolute fact, however, exists only in a hypothetical. It is an assumption for discussion. In real life, there has to be evidence that someone was caught in the act. That evidence can be false. Similarly a confession can be false. In the case I mentioned earlier, the woman entered a plea of guilty. There is a long series of questions posed by the judge to make sure a guilty plea is voluntary, and no doubt the woman answered that her plea of guilty was voluntary, and confessed to having committed the crime. If the current forensic evidence and analysis is correct, however, not only was she not guilty, but the crime never took place.
Ain't nuttin' simple.
I think I'll secede from this thread and go back to tractors.
Ciao

 

[cp1969]

Hey, hey, hey!!!!!!! Don't run off on me now. We're finally getting somewhere--I liked the response you gave. I agree that the system has flaws.

There are many cases where guilt IS firmly established--e.g., Jack Ruby.

 

[wroughtn_harv]

<font color=blue>You say that the vast majority of pedophiles are relatives and/or family. That may be accurate, but it has been shown that MOST PEDOPHILES CONSIDER THEMSELVES TO BE **** OR BISEXUAL.</font color=blue>

That's an interesting statement. Especially when you consider 69.4 percent of the victims of sexual assault under five years old are female. 74.9 percent of the victims between six and eleven are female. 90.9 of the victims between twelve and seventeen are also female.

These statistics came from the government <A target="_blank" HREF=http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf>here</A>.

So if you want to really be serious about protecting daughters from sexual predation I'd say the odds really tilt into your favor by having gay friends over instead of straight friends and family.