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Criminal Defence vs. The Conscience?

post #1 of 99
Thread Starter 
I'd like to solicit the opinion of those practising criminal defense about whether their careers ever conflict with their conscience - or if, in fact, the opposite is true.

I'm far, far beyond the "How can you defend people you know are guilty?" frame of mind, but I can't escape the notion that the actual practise of criminal defence requires lawyers to do sleazy things: like cross-examining (often very young or vulnerable) victims, attempting to exploit the administration of justice through delay or other frivolous technicalities, suggesting truths you know are untrue, and in general attempting to dissect facts you feel are true for the purpose of destabilizing their truth.

I really don't mean to suggest that defence lawyers are any more or less subject to the unsavoury dimensions of legal practise (all lawyers are asked to take a side), and I won't mention the incredible merit I see in criminal defense work. It's the questions that are bothering me...

Thanks
post #2 of 99
and what makes working for the govt so noble? is it persecuting the rich for personal political gain? (NY DA office) spending millions to create fake terrorists, again for personal gain? (FBI and LE) the power to dictate your whims to America? (the judiciary) or is it just the fact that you get paid much less? cheers
post #3 of 99
i'm sure DAs and AUSAs grapple with the converse of your question all the time -- that is, how can i prosecute someone i know is innocent? prosecutors can be just as sleazy - if not sleazier -- than defense attorneys.
post #4 of 99
The way you phrase your questions suggests the result you expect.

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like cross-examining (often very young or vulnerable) victims,

I'm not there to assist in someone's victimhood, there are social workers and counselours for that job. "Victims" are just as prone to falsification as any other witness, perhaps more so since they've been through a traumatic event of some kind.

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attempting to exploit the administration of justice through delay or other frivolous technicalities,

In PA criminal defense I rarely seek to delay the case. Rule 600 requires the case to be brought to trial in a timely manner, and if not the charges can actually be dismissed. It's much more often the prosecution that attempts to delay trial because they have to get their case together AFTER charges have been filed, rather than BEFORE.

I don't know what "frivolous technicalities" you're referring to, unless you mean the Constitution and our freedoms. Personally, I like that a cop doesn't have the right to just pull me over for driving home and minding my own business if I haven't committed an offense. If drug dealers have to be released because cops can't follow the rules then so be it, I'm not a fan of drug prohibition anyway.

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suggesting truths you know are untrue,

I'm not ethically allowed to lie to a jury or judge, and I would never do it. That doesn't mean I can't suggest alternate theories of what happened which fit the fact pattern offered by the prosecution.

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and in general attempting to dissect facts you feel are true for the purpose of destabilizing their truth.

"Feel" are true? Conviction here requires proof beyond a reasonable doubt. "Feeling" something is true falls far short of that threshold. I have no compunction about attacking facts that might be true if they haven't been proven to that level.
post #5 of 99
I think the big difference here is the starting point of the OP's questions. It assumes "truth" as guilt. I think I am safe to say that our system of an adversarial court process takes as "true" that the best way of getting to the truth is through this adversarial system.
post #6 of 99
Quote:
Originally Posted by harvey_birdman View Post
...

You sound like a knowledgeable lawyer. You sound like you still have some fire in you too, so I take it you are fairly young.
post #7 of 99
Quote:
Originally Posted by bringusingoodale View Post
You sound like a knowledgeable lawyer. You sound like you still have some fire in you too, so I take it you are fairly young.

I have to find some way of justifying my paycheck.
post #8 of 99
Interesting that you left off "convincing your clients to plead out," which is what you'd spend most of your time doing.
post #9 of 99
Thread Starter 
Before I engage you guys in conversation, let me re-iterate that my intention is to canvass your views and opinions with an open mind. Defense work is a field I'm considering myself, so I am very far from presuming that it is ethically or morally unsound.
Quote:
Originally Posted by harvey_birdman View Post
The way you phrase your questions suggests the result you expect. [...] I'm not there to assist in someone's victimhood, there are social workers and counselours for that job. "Victims" are just as prone to falsification as any other witness, perhaps more so since they've been through a traumatic event of some kind. [...] I'm not ethically allowed to lie to a jury or judge, and I would never do it. That doesn't mean I can't suggest alternate theories of what happened which fit the fact pattern offered by the prosecution. "Feel" are true? Conviction here requires proof beyond a reasonable doubt. "Feeling" something is true falls far short of that threshold. I have no compunction about attacking facts that might be true if they haven't been proven to that level.
I suppose, at the end of the day, neither prosecutors nor defense lawyers can say to a certainty how a criminal event unfolded. The most we can do is tailor the evidence to a certain theory. Granted. But, as a matter of law, defense counsel who KNOW their client is guilty can and must (if they are asked to) test the state's evidence against their client. Does this mean proposing theories that a lawyer KNOWS must be untrue (insofar as they suggest innocence)? Does a strictly ethical lawyer in this scenario simply propose that the state hasn't met its burden of proof? Also, I personally have trouble with the idea of suggesting to victims (let's say, a child alleging sexual assault) that their version of events is flawed - unless, of course, I have a real reason to believe so. Whether social workers exist or not, it simply would not sit well with me. I'd be curious to hear how you cope with that, Harvey, if you'd like to elaborate.
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Originally Posted by Ataturk View Post
Interesting that you left off "convincing your clients to plead out," which is what you'd spend most of your time doing.
Another good example of what must make the life of a defense attorney difficult.
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Originally Posted by scientific View Post
and what makes working for the govt so noble? is it persecuting the rich for personal political gain? (NY DA office) spending millions to create fake terrorists, again for personal gain? (FBI and LE) the power to dictate your whims to America? (the judiciary) or is it just the fact that you get paid much less? cheers
I am not suggesting that prosecutors are morally pure. I don't believe in blacks and whites. But, as a matter of law, prosecutors are not doing their jobs if they are sending people they know are innocent to jail. On the other hand, defense lawyers who manage to get morally reprehensible individuals "off" are. In other words, defense lawyers were CONCEIVED with a view to having a strict and narrow duty to their client, which reason suggests would cause them to ride along the line of "amorality" far more regularly. Thanks
post #10 of 99
Quote:
Originally Posted by Sherman90 View Post
I suppose, at the end of the day, neither prosecutors nor defense lawyers can say to a certainty how a criminal event unfolded. The most we can do is tailor the evidence to a certain theory. Granted. But, as a matter of law, defense counsel who KNOW their client is guilty can and must (if they are asked to) test the state's evidence against the burden of proof. That means proposing theories that conform to the evidence that person knows is untrue (insofar as they suggest innocence) - unless, of course, they are so ethically conformist that their entire theory is that the state simply hasn't met its burden. Do you do this, Harvey?

Knowing my client committed a crime doesn't mean he committed the crime he's charged with. As an example, I get clients charged with PWID (Possession with intent to distribute) all the time. The vast majority are not trying to sell the stuff; they bought for personal use (a lesser crime). But the Commonwealth can't seize a person's vehicle and sell it at auction to support the Drug Task Force unless the person is charged with PWID, so I have to fight a more serious charge by basically arguing to the jury that my client is a drug user, not supplier.

I have not yet had to defend a client who I knew was guilty of the crime charged and deserved to be punished accordingly and could offer no substantive defense. Were I to get that client I would still have a duty to defend him/her by arguing the case was not proven beyond a reasonable doubt or jury nullification or whatever I could come up with.

Quote:
Also, I personally have trouble with the idea of suggesting to victims (let's say, a child alleging sexual assault against a parent) that their version of events is flawed - whether social workers exist or not. We may have different moral compasses, but that would leave an unsavoury flavour in my mouth. I'd be curious to hear how you cope with that, if you'd like to elaborate.

I have had several of these cases. Alcohol helps with the coping.
post #11 of 99
Thread Starter 
Quote:
Originally Posted by harvey_birdman View Post
Knowing my client committed a crime doesn't mean he committed the crime he's charged with. As an example, I get clients charged with PWID (Possession with intent to distribute) all the time. The vast majority are not trying to sell the stuff; they bought for personal use (a lesser crime). But the Commonwealth can't seize a person's vehicle and sell it at auction to support the Drug Task Force unless the person is charged with PWID, so I have to fight a more serious charge by basically arguing to the jury that my client is a drug user, not supplier.

I have not yet had to defend a client who I knew was guilty of the crime charged and deserved to be punished accordingly and could offer no substantive defense. Were I to get that client I would still have a duty to defend him/her by arguing the case was not proven beyond a reasonable doubt or jury nullification or whatever I could come up with.



I have had several of these cases. Alcohol helps with the coping.



Thanks for your input, Harvey. Ever served as a DA?
post #12 of 99
Harvey Birdman's already articulated all the reasons why criminal defense work doesn't bother me; in fact, I love it. Does it weigh on my conscience to cross a complaining witness ("victim," as OP said)? No. My job is to ensure that the DA and the police got the right guy, that they did the job by the book, and to make sure the CW isn't lying. Remember that it's not my job to prove my client's innocent - it's the Commonwealth's job to prove he did it. I will use anything in my power to ensure that my client gets the best result - whether it's putting up a good defense or telling them that a plea it the best way to go. Criminal defense lawyers, while demeaned by many as bottom feeders, protect citizens from the most basic civil rights that they take for granted - that is, until THEY'RE arrested by the police for something "they didn't do." Then suddenly, the "technicalities that let criminals get off" become "important civil rights to keep me out of jail." I am floored by the people that say "well, if you're not doing anything wrong it shouldn't matter."
Quote:
Originally Posted by harvey_birdman View Post
I have had several of these cases. Alcohol helps with the coping.
QFT.
post #13 of 99
Quote:
Originally Posted by harvey_birdman View Post
The way you phrase your questions suggests the result you expect.



I'm not there to assist in someone's victimhood, there are social workers and counselours for that job. "Victims" are just as prone to falsification as any other witness, perhaps more so since they've been through a traumatic event of some king.



In PA criminal defense I rarely seek to delay the case. Rule 600 requires the case to be brought to trial in a timely manner, and if not the charges can actually be dismissed. It's much more often the prosecution that attempts to delay trial because they have to get their case together AFTER charges have been filed, rather than BEFORE.

I don't know what "frivolous technicalities" you're referring to, unless you mean the Constitution and our freedoms. Personally, I like that a cop doesn't have the right to just pull me over for driving home and minding my own business if I haven't committed an offense. If drug dealers have to be release because cops can't follow the rules then so be it, I'm not a fan of drug prohibition anyway.



I'm not ethically allowed to lie to a jury or judge, and I would never do it. That doesn't mean I can't suggest alternate theories of what happened which fit the fact pattern offered by the prosecution.



"Feel" are true? Conviction here requires proof beyond a reasonable doubt. "Feeling" something is true falls far short of that threshold. I have no compunction about attacking facts that might be true if they haven't been proven to that level.
What this guy said. Not to mention, even the guilty deserve a fair trial, and going against a trained prosecutor without legal training of your own does bor make for a fair trial.
post #14 of 99
Not to mention, your rights and the parts of the law that restrain the government from trampling them are not "frivolous technicalities" any more than the laws that people are accused of violating are.
post #15 of 99
Quote:
Originally Posted by scientific View Post
and what makes working for the govt so noble?
is it persecuting the rich for personal political gain? (NY DA office)
spending millions to create fake terrorists, again for personal gain? (FBI and LE)
the power to dictate your whims to America? (the judiciary)
or is it just the fact that you get paid much less?

cheers

Haha, yes, the rich never get any breaks, nothing ever goes their way. They should be free from persecution, not to mention prosecution.
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