Ask Standing On The Shoulders Of Giant Midgets: scum-sucking lawyer

>> Thursday, June 16, 2011

Another day, another Ask Standing On The Shoulders Of Giant Midgets question! timb111 wants to know:

As a scum-sucking lawyer do you believe it is your job to get all of your clients acquitted, or do you try to see that justice is done?

Tsk, tsk, tsk. Well, timb111, I stopped beating my wife shortly after I discovered she li--hey!

But seriously, I've mostly kicked the scum-sucking. Sure, okay, so every now and again I'm walking by a pond with a thick green layer of luscious algae on it, and I start to pat my pockets for a straw, but mostly I refrain and haven't had a relapse in days. (It sounds even better when I convert the time to hours, because ninety is an impressively large number, don't you think?)

No, wait, that wasn't serious, either. That was a stand-up comic's "but seriously", and who was the first to do that, I wonder, to telegraph a joke with, "but seriously"? How many times did audiences actually think the comic was about to really say something serious before they grokked that "but seriously" was the setup for a joke? I think it was probably sometime in the caveman age, if they had stand-up comics back then. "Hey, Krug want know, what deal with no more mammoth? Mammoth learn hide from pointy sticks? Krug think mammoth up to something."

And now let's really get serious.

The question is front-loaded, of course. It presumes that justice and acquittals are foreign to each other. And I'm not talking about the innocent client who is wrongly charged somehow. Let's talk about the guilty: why are you assuming that acquitting a guilty client isn't justice being done?

The Western system of justice is an adversarial system, whether one is talking about the Anglo-American system or the Civil systems. These are dialectical processes in which a trier of fact hears from opposing viewpoints and decides who has met their burden of proof (if they have one) for a proposition. In the context of the Anglo-American criminal tradition, the trier-of-fact hears evidence from the government, rebuttal evidence from the accused if the accused wishes to present any (none is required), and then decides whether the government has proven the guilt of the accused beyond a reasonable doubt. And that's justice as our civilization has defined it, though there may be all sorts of murky moral or emotional concerns amongst those who feel (legitimately or not) that the actual result differed from what they think a desired result should have been.

That last bit raises one of the trickier aspects of the question you ask, timb111: justice according to whom? If a victim's family strongly feels the accused is guilty and the family of the accused strongly feels he isn't, then there's probably no result that everybody will say is "just". And you might say, "Ah, but the accused knows what he did/didn't do!" But then you get into the murky questions surrounding "guilty of what?" Suppose the accused did do something wrong, but not what he or she was accused of. He was negligent, perhaps, but didn't behave intentionally; she was cruel, but didn't mean for things to get so far. Somebody did something awful, but did they do something criminal?

In 2010, a troubled young lady named Phoebe Prince committed suicide and a group of her schoolmates were charged with various felonies related to alleged bullying that purportedly led to Prince's death. The criminal charges were resolved earlier this year with misdemeanor pleas. Was justice done? That question's entirely rhetorical; it's a Rorschach test: your answer will depend entirely on how you feel about bullying, juvenile law, suicide, children and causality. One can argue that the result was the correct result because the juveniles behaved badly and should have been punished for something, you can argue that the result was wrong because the juveniles shouldn't be deemed criminally culpable for Prince's independent and willing actions, you can argue that the result was wrong because the juveniles were a "but-for" cause of Prince's death and should have been prosecuted to the fullest extent of the law for their actions. You can also make various arguments based on other issues: these are just high school kids who shouldn't have something as irrevocable as criminal records for "just being kids" however tragic the consequences; no, they were teenagers who were "old enough to know better" and serious happenings have serious consequences (we are talking about a dead girl, not setting a dumpster on fire while smoking behind the gym, after all). Maybe one would like to argue the back-and-forth of expanding or shrinking the web of responsibility: maybe the juvenile defendants shouldn't be held accountable if the parents and school aren't being held accountable for their failures to act at various points, or maybe those issues are entirely irrelevant to the juveniles' culpability--it's not hard to make several reasonable arguments out of those issues, isn't it?

But there's a bigger idea here, too, going back to what I started with--the adversarial, dialectical nature of our legal system. For the system to work for everybody--the innocent, the guilty, the somewhere-in-betweens--means that somebody has to take the side of the accused, regardless of what the accused's side is. (This is true in civil cases, as well: somebody has to represent the unpopular causes and those alleged to have committed various torts, acts of negligence, etc.) That's how our system tries to arrive at some semblance of truth about what happened and fairness about what to do about it. And it's not necessarily the place of the representative to decide what should happen, as it's primarily his responsibility to give his side the best presentation he can, whether that's making a good defense at trial or trying to achieve a compromise that everybody can live with.

If I do a good job serving the functional needs of a system that, for all its flaws, is better than throwing people into rivers to see if they float or making them stick their hands into melted lead to see if they're burnt or hiring two knights to hit each other with sharp metal (though there are resemblances to that last one)--well, that's me doing my job and that's justice being done. How would it be justice if I decided for any reason to throw a case so that the dialectic was a monologue from the lawyers for the state? I mean, yeah, I might be happiest if I can find a compromise that makes everybody less-unhappy and there are times I'm not happy with the ways in which my job can force me to be, frankly, cruel; but at the end of the day I serve the system best if I look for those ways out for my clients, and barring that, damage control.

Which brings us to, maybe, the last point, which is that questions like yours, timb, always seem to slough some kind of blame off onto one side of the process, and why is that? I mean, when (for instance) a charge gets dismissed because of a defective warrant or indictment, why is the sentiment always along the lines of "Those defense lawyers don't care about anything but an acquittal, they don't care about justice" instead of something along the lines of "Those cops don't care about writing a ticket correctly" or "Why don't those prosecutors care enough to file the indictment properly?" Seems like somehow it always ends up being the defendant's fault that the police officers violated his constitutional rights or the district attorney's office failed to exercise some duty, because, I dunno, I guess the defense attorney is supposed to say, "Well, yeah, sure, this proceeding is procedurally defective and/or illegal, but my guy's a turd so I should keep my mouth shut about it." I'm not sure how that's justice, exactly. Or how about when the outcome of a trial isn't so much the defense winning as it is the prosecutor losing (which I think was basically what happened in the O.J. Simpson murder trial, in which the prosecutors seemed intent on making one huge mistake after another--you know, like, "Hey, let's give a piece of evidence to the defendant in the courtroom and tell him to put it on in front of the jury--I know he's an actor, but have you seen those Naked Gun movies? He's no Kenneth Branagh, that's for sure! What a great idea, let's do it! Yay, team!"). Nope, it's just taken for granted that the state is for justice and the defense if for the subversion of justice, and every time the defense wins the cause of civilization is set back, etc.

I guess my job would be to play my role in the system as best I can. Hope that answers the question, and thank you for asking!


Tom Thursday, June 16, 2011 at 3:08:00 PM EDT  

Once again you make me look at something from a new point of view. So "justice" includes not jailing a perpetrator (guilty or not, I'm not adddressing guilt) when the prosecution doesn't do things properly. If the defendant is "innocent" then it's triumph of the system, but if he's "guilty" then the system failed? No. Justice is when the system works properly, and basing outcomes on mistakes is not justice.

I also think the attorney can't concern him/herself with the guilt of their client. If the attorney thinks (rightly or wrongly) that the client is guilty, and because of that won't do something that he should, that's also a mistake in the process.

Using the system's safeguards to get a guilty person off has to be justice, too; it has to be part of the system.

Thanks, Eric.

timb111 Friday, June 17, 2011 at 10:00:00 AM EDT  

That was a great answer to a not too serious question. Thanks I learned a lot from it.

I was on the periphery of a case where the main defense lawyer managed to intimidate the prosecutor through a series of wins in other cases into reducing charges. The rational was that if the case goes to trial there will be a lot of negative publicity that no one wants and besides, the defendant really was guilty of the lesser charge. As someone who was asked the weigh in on the decision I reluctantly agreed with the defense lawyer, but now after reading your essay I don't think I would again.

The defendant spent seven years in maximum security prison (in Canada, which isn't nice, but still not as bad as if it were in the US).

BTW, I notice that towards the end you start referring to me as timb. While I've been reading and commenting on your blog for a number of months I don't feel that degree of familiarity is warranted, however, in view of your service in answering this question, you can call me timb11 if you like.

Konstantin B. Friday, June 17, 2011 at 10:51:00 AM EDT  

Is it a common occurence for prosecution to go after the lesser or easier to prove charge, just to get the guy, or win a trial?

Eric Friday, June 17, 2011 at 10:55:00 AM EDT  

Sorry if I was overly-familiar, timb111. :)

Eric Friday, June 17, 2011 at 12:29:00 PM EDT  

Konstantin: I would say offhand that it's more likely for the state to overcharge a defendant, on the theory that it gives them leverage in plea negotiations. But the answer really varies; the prosecution of Al Capone for tax evasion comes to mind as a famous situation in which prosecutors went after a defendant for the less-serious charges they could prove, knowing full well that there were far more serious accusations out there for which it would be harder to get reliable witnesses to testify to. So I don't know if I can say what is "common", except to suggest (anecdotally and off the top-of-my-head) that if I had to guess, I'd go with overcharging.

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