If You Were A Lawyer, Could You Defend Someone You KNEW Was Guilty?

[arwalden]

Poll question: If You Were A Lawyer, Could You Defend Someone You KNEW Was Guilty?

I'm not asking if a guilty person deserves a fair trial... I'm asking if you could personally be the one to defend a guilty person?

If you were good, you might even help a guilty person get off the hook, scot-free. How would you feel?

(Sometimes I wonder if Johnny Cochran knew in his heart that OJ did it. Surely he knew... but just didn't care.)

[Waya]

1. Would depend.....

....on the situation.

[Mairead]

41. yes, it would depend on the law and the reason behind the violation

If it involved willful injury to an innocent person, then no. Otherwise, maybe.

[JanMichael]

2. Yes. Would of course "care" but that's not the point.

It's a necessary "evil" that's part and parcel of the system.

It'll be interesting to see how this poll turns out.

[expatriot]

3. If you were a public defender, perhaps. but if you ran a

private practice... you would be willing to defend a client in which you were voluntarily representing (even as a public defender, you can choose to decline representing someone, can't you?). There is no way I could do it. I would counsel my client to plea bargain and if they refused I would have to back out.

[ChairmanAgnostic]

13. One of your duties is to protect your client from bad prosecution

OK, so your client is guilty. Big deal. Lots of people are guilty.

What about an overreaching prosecutor who wishes to make an example of your client?
Say that your client is a black 15 yr old having consensual sex with a white, blonde, 15 yr old aruba-loving cheerleader with perfect teeth, silicon breasts and rich, angry, politically connected parents?
What would satisfy them? Life in prison? Death penalty?

OF COURSE your duty remains to protect your client.

part of the system also requires the punishment, prosecutorial efforts and the judiciary to be fair, within the law and ethical.

That is a tough job, regardless of your client's guilt.

[expatriot]

20. In that case (pardon the pun), your client wouldn't be guilty of a crime.

Your case would be to argue that the sex was consensual because that would be the truth.

But if your client was guilty of a crime, there is a difference between protecting your client from unjust prosecution and sentencing and covering up the truth for them, IMHO

[ChairmanAgnostic]

28. in several states underage sex is

a) a sex crime, labeling the male as a criminal for life
b) a misdemeanor
c) ignored by authorities
d) a normal, human, commonplace activity between inquisitive teens

but it is a crime in some jurisdictions. It is how that is treate by the prosecution.

all too often, if the person charged is black, male and "doin the deed" with a white girl, even today, the male ends up with a label of "sex offender" and the girl goes to aruba after her nose job.

Ugly truths, yes. but it happens.

[expatriot]

30. I'll admit my ignorance here....

but can't a lawyer appeal to the reason and common sense of the court (this defense would be much easier of course with a jury trial) as to the obtuseness and pettiness of the charges?

granted, in your example... this wouldnt work with a racist judge/jury.

So if all else failed yes this would be the exception and I would do all within my means to make sure justice was served. But my only problem in defending him is being afraid that the case would fall apart and he'd be even more screwed.

The key here is I would do what ever I thought I had to to make sure justice was served. If, as in the situation above, I came to the conclusion that the system had failed the accused then I would not be inviolation of my ethics defending him against a broken system.

[ChairmanAgnostic]

33. I admit I took an extreme and difficult example,

but back to the point to the thread,

should an attorney represent someone who he/she knows to be guilty?

A resounding yes. Because of jury, prosecution, judiciary errors and proclivities.

Lawyers always appeal to reason and common sense, but a judge has taken an oath not to be swayed by that. An arbiter of the law as it exists - even if the law be an ass.

Is the law an ass at times? Considering that "LAW" is created by our elected legislators? Who do their best to get re-elected and grab as many campaign donations possible, while they pander to the lowest uncommon denominator? Of course they pass a lot of garbage.


(I do believe that South Carolina has a law which forbids women from driving on sundays for their health. Unless they finally repealed it.)

[yankeedem]

4. Yes, of course

Lawyers job isn't to ascertain guilt, it is to make sure that their client gets a fair shake. This means a fair sentence and a fair hearing of the circumstances surrounding their guilt.

And once they take a case, they aren't really allowed to recuse themselves, except in limited circumstances.

[expatriot]

12. I am not a law student, but I know that witnesses take that oath

"the truth, the whole truth and nothing but the truth." They take that oath as their "entry" onto the court record, so aren't lawyers pretty much under that oath during the whole trial?

If you knew your client was guilty, there would be a reason why you knew. Some evidence and/or a confession.

If you were defending a multiple rapist/murderer (forgive the hyperbole), and you knew he was guilty and your great defense skills got him acquitted and back on the streets the same day, you wouldn't have a problem with that?

[yankeedem]

17. Unfortunately, that is the price for our rights

I might feel guilt for this, but it would be my job to defend my client's interest 100%.

I'm not a lawyer, but it's not my job to ascertain guilt. It is my job to represent my client.

I'm not sure what the rules are, but if a defense attorney has evidence concerning his client, isn't he/she obligated to bring it to the prosecution's attention? And vice-versa?

[expatriot]

24. hey,maybe that is the out here....

if you revealed the incriminating evidence to the prosecution you could go onto defend your client, do your duty to represent your client and also do your duty to the ethical code... the only thing about that is it would go against your self-interest of being "out to win." But that makes the ethical dillemma more clear.

[mondo joe]

25. KNEW he was guilty? Or felt he was guilty?

And if the case against him was decent, how'd he get acquited?

[SW FL Dem]

40. That's not how it works

Lawyers don't take the oath, they are governed by the ethics rules of their state Bar Association. One of the major rules is that a lawyer must defend his or her client zealously within the bounds of the law. In English, the lawyer is required to do everything legally possible to help the client. It isn't easy for a lawyer to withdraw from a criminal case, they generally need court permission to do so. The problem is that if a lawyer withdraws, some people, most importantly jurors, may wonder why and unfairly prejudice the case against the defendant.

The system isn't perfect and yes, sometimes guilty people go free, but our system was designed on the premise that it is better to let a guilty man go free than to imprison an innocent one. I don't like the idea of letting someone off, but I have much more trouble with convicting an innocent one. Look at all the people freed thanks to DNA and the Innocence Project

[hyphenate]

42. One philosophy that I have seen

is that lawyers would rather one guilty man was set free, than many more innocent men in prison. It's an interesting thought, though, when that guilty person is a rapist, pedophile or murderer. However, as I said in my post below, it is the prosecutor's job to establish guilt, not the defense attorney's job to prove innocence. And there is a huge chasm of difference between the two tacts.

[Independent_Liberal]

5. Yes

Like somebody said above. It all depends on the situation.

[Canadian_moderate]

6. I voted "NO"

...and that's why I am not a lawyer. I could not participate in setting someone free when I know he/she is guilty, especially if it were a crime such as murder.

To be honest, I think that anyone withholding such evidence is not serving anyone other than the guilty party.

In Canada, we had a situation with Paul Bernardo and Karla Homolka where Homolka's lawyer withheld video evidence of the horrific crimes and proceeded to negotiate a plum deal for his defendant knowing full well that she had participated equally in the horrific rapes and murders of several young girls. I don't know how the lawyer could live with himself.

[DefenseLawyer]

31. There have been numerous examples

of persons convicted of murder or rape that everyone "knew was guilty" which later, most famously by DNA evidence, were found to have in fact been innocent. How would you feel if you were a defendant in that situation? Would you want to be defended or would you want your lawyer to say "Well this one looks pretty bad, so I'll just go through the motions."? The point of course is not that these examples are common, they are not. The point is we can't have two kinds of justice, one for those that might be innocent and one for those that clearly are not, because as human beings we sometimes learn that what seemed obvious may not be.

[htuttle]

7. It would depend on what the offense was

If it was possession of pot, sure -- of course I would.

If it was for murder -- nope, not without a whole lot of extenuating circumstances (In other words, as long as the defense didn't rely on proving they didn't do it).

If it was for something 'in the middle' like burglary, that would actually be a tougher call.

[DefenseLawyer]

36. Don't equate defending your client with being unethical

Defending your client means holding the state's evidence to vigorous scrutiny and presenting evidence to the contrary that will challenge that evidence. It does not mean presenting false testimony or false evidence to the jury. I see on this thread a lot of people that assume that the State is always fair and just presenting truthful testimony, while the defense is scheming a way to lie for an obviously guilty client. I will tell you that being a criminal defense lawyer for more than 10 years, that police officers as a group are more likely to lie on the stand than anyone. I don't mean that to disparage police officers, but it is a fact. There is among some, (and no, not all or even most)police officers that conclude that the end justifies the means and if they have to shade their testimony to obtain a conviction they will do so. No honest cop will tell you that that doesn't happen on a regular basis. Defending your client means making sure that if the state convicts him it is with solid trustworthy evidence. If the evidence can't withstand scrutiny, it should not be enough to take a man's freedom. Everyone should have the benefit of that defense, even the obviously guilty. Because believe it or not, sometimes even the obviously guilty are innocent. I still hold to the principle that it is better that 10 guilty people go free than one innocent person lose his freedom.

[htuttle]

37. I wouldn't disagree with that

But the premise of the thread was if "I knew" my client was guilty. I'd presume the only way I'd 'know' that is if the client told me so (and I'd grant that sometimes people confess to things they didn't do, for various reasons, but I'm assuming I don't suspect that in this hypothetical situation).

I'm also presuming that this scenario is for a private defense attorney. If I were a public defender, that's a different story. In that case the client has no one else to defend them, ergo my view of the situation changes.

I do agree that even 'the guilty' are entitled to a strong legal defense. I just don't know if I'd always want to be the one that provides it, however.

All of this means it's probably good that I'm not a lawyer....:)

[0007]

8. Money dictates! Our economy is run by politicians in disguise.

I couldn't vote.

[mtnsnake]

9. No, if I "KNEW" he or she was guilty, then there's no way I could do it.

If I had to do it because it was just my job, I'd get a new job.

[Another Bill C.]

10. It's a prosecutor's job

to prove guilt "beyond a reasonable doubt." If the prosecutor can't do that to a jury's satisfaction, then the prosecutor is the one at fault and not the defense attorney. Blaming a defense attorney because the prosecution team failed is just not logical.

[Gormy Cuss]

11. No. That's why I'm not a lawyer.

I considered it because good defense attorneys are always in demand and the mental gymnastics necessary to be a good attorney has appeal, but I knew in my heart that I would sabotage the defense of a guilty person whose actions involved bodily harm or death. So sue me.

[expatriot]

16. I almost said that too.

But then I realized there may be other, more determining factors, as to why I am not a lawyer.

[mondo joe]

14. Yes, I would in general. There are some I wouldn't defend because of my

own personal bias - both because of my own stuff and because I couldn't do a good job.

For example, I could not defend someone guilty of gay bashing. I probably could not defend a fundy.

[Canadian_moderate]

15. Would you defend George W. Bush?

If he were on trial for his actions? Consider that!

[mondo joe]

18. I already said I probably wouldn't defend a fundy. But I would say he

deserves a legal defense. I just wouldn't be the one to provide it.

And don't forget, a defense is just that: a defense. It's not a get-out-of-jail coupon.

[Canadian_moderate]

21. My apologies

I meant to reply to the original question, not your response.

[mondo joe]

22. No problem. But the point remains: being a defense attorney doesn't mean

you have to defend ANYONE.

[oddtext]

29. The enemy of all mankind? *

*? No. I would have a personal conflict in this particular case and would not in that I do not believe I could provide effective assistance.

i'm not saying that he shouldn't have counsel, just not me.

[merh]

35. If I were a criminal defense lawyer, would I defend GWB. Hell yes.

Why? Because even though he is vile and arrogant, even though he has denied me and many others their constitutional rights, he is a citizen entitled to have his constitutional rights protected. That is what a criminal defense lawyer does - he is there to make sure that the constitutional rights of the accused are protected and that the prosecution meets it burden of proof. When he/she does that, he/she is protecting your constitutional rights and my constitutional rights.

The weed is scum, but even the lowest form of criminal is entitled to the safe guards provided by the constitution. To think otherwise puts you on the same level as the weed, he doesn't care about the constitutional rights and he thinks he can determine who is entitled to their protection and when they are entitled to the protection.

[punpirate]

19. I've talked with lawyers about this over the years...

... and virtually all say that their code of ethics allows them to recuse themselves from a case in which the defendant has admitted guilt but still wants to pursue a not-guilty plea. The next question, of course, is, "has it happened to you and what did you do?" About half went to the judge and requested to be removed from the case before trial. Those who found out during a trial felt they had an obligation to pursue an adequate defense, but several said their heart just wasn't in it.

I know one guy in Illinois who's regularly defended poor clients, and those he suspected were guilty, based on their private conversations or their pleadings, he stayed with so that he could negotiate a reasonable sentence for them and once doing so, convinced them to plead guilty. Sometimes, though, even though there was apparent guilt, he would stay with the case because he thought there was unexplored territory in the law, if the case involved an overreach of the authorities regarding speech or privacy or due process.

The big-money lawyers representing the very wealthy are a class unto themselves, and their ethics might well be suspect. But for the largest number of cases, ordinary lawyers take ordinary clients and do the best they can if they have a chance to. From what I've heard over the years, that latter group doesn't have any illusions about the system, and few of them harbor delusions about their clients for the sake of monetary gain.

Cheers.

[merh]

38. I would never hire any of the attorneys you have spoken to.

Their job is not to get an acquittal, it is to insure that the constitutional rights of their client are protected. Their job is to make sure the prosecution proves their case, meets its burden.

To decide to withdraw because they know of the guilt of their client is to abandon their ethical and constitutional obligations. Even the likes of Ted Bundy and Charles Manson were entitled to a defense, entitled to have their constitutional rights protected and the prosecution held to the burden of proof. In protecting the rights of the accused, criminal defense lawyers are protecting your rights and my rights.

[punpirate]

45. The flip side of your assertions is that an attorney...

... under the ethics rules can be disbarred for mounting a defense for a client who's admitted guilt, in some circumstances, specifically, offering evidence to the court that the lawyer knows to be false (see the ABA Model Rules Of Professional Conduct, Rule 3.3(a)(4) (1983)). This particularly applies to lawyers who have client-admitted evidence of guilt who put their clients on the stand and present the false testimony of an admittedly guilty defendant as if it were true.

It's not so simple as you describe. A lawyer is constricted in two ways in such circumstances--putting a self-admitted guilty client on the stand as part of a defense can jeopardize the lawyer's license, while advising the client to not take the stand and assert 5th Amendment rights can create an impression of the client's guilt in the jury. Even Justice John Paul Stevens has said, "experience also justifies the inference that most people who remain silent in the face of serious accusation have something to hide and are therefore probably guilty; yet we forbid trial judges or juries to draw that inference."

What Stevens is saying is that despite the admonition from a trial judge, natural suspicions in those circumstances are a powerful influence on a juror.

Now, you're a lawyer with a not-too-bright client facing a charge for possession of meth-making equipment and meth precursors and obvious signs of meth use who in private conversations admits, "yeah, I was making meth--I needed the money." Do you put that person on the stand and have him testify as to his innocence?

Cheers.

[merh]

47. As Mr. Starr points out - most criminal defense lawyers make

a point of not determining the "guilt" of their client.

Even if the attorney "knows" that the client is guilty, they don't present evidence of innocence, they put on a defense and hold the prosecution to its burden of proving guilt beyond a reasonable doubt.

If the client insists upon lying on the stand, then the attorney will go to the court and ask to be discharged from his duties. Most lawyers would never put their client on the stand and most that I know do everything in their power to not subject their clients to cross examination by the prosecution, even if the client is innocent.

It is as simple as I describe.

[Solly Mack]

23. Yes - been running through scenarios and the bottomline is Yes

I don't particular like what that says about me...though I'm sure I could never defend someone like Delay or Bush or Cheney...or Ken Lay...

so maybe it's more of a maybe than a yes...

:)

[Walt Starr]

26. A good defenseattorney goes out of their way to insure

their client never relates their guilt or innocence to them.

[oddtext]

27. I am a Public Defender

Of course. The guilty need representation. Be mindful that we live in country gone mad. Even if the Defendant is guilty, the defendant deserves a fair, proportional sentence, an opportunity to be heard regarding mitigating factors regarding the guilty deed and all other constitutional protections defendant's a guaranteed by the CONSTITUTION. Sometimes I look at things that way -- I'm defending the Constitution. We don't just take people the courthouse basement and put a bullet in their head upon the jury's verdict/defendant's plea. There's more to it.

Now, someone posted that they just couldn't represent someone that they KNOW to be guilty and they would counsel a plea bargain. Sure, that's what happens all the time. Sometimes the charge isn't appropriate and the Defendant is guilty of something, so a plea is negotiated.

I do want to say that we lawyers cannot take a case to trial knowing that the Defendant is guilty where the Defendant wishes to present a case contrary to fact, or that is fraudulent. That is a conflict of interest and is clearly unethical.

If that's what this poll drives at I switch my vote to NO. However, I take it more generally, and YES DEFENDANTS NEED REPRESENTATION and THE CONSTITUTION MUST BE DEFENDED!

[merh]

32. Yes, a criminal defense lawyer's job it to protect the constitutional

rights of the accused, and in so doing, they are protecting all of our constitutional rights. A criminal lawyer has an ethical obligation to provide his/her client the best defense he/she can. Their job is not to "get the client off" but to make sure that all of the constitutional rights of the client are protected. The prosecution has the burden of proof and the defense is obligated to make sure that the prosecution meets that burden. Generally, the playing field is not level as all the resources of the government are used to convict the accused.

Wealth, or lack there of, has a huge impact on a defense. Not just to pay for the best lawyer or team of lawyers, but to adequately investigate the charges and interview the witnesses. Money is necessary to afford experts to review the evidence and dispute it, if possible. Money is needed to "survive" while being investigated and prosecuted. Most accused find the accusations alone harmful to their reputation and their ability to make a living to pay for their essential needs, let alone the costs associated with defending themselves.

The OJ Simpson trial was an example of a "level" playing field for both sides involved and the jury system at its best. The prosecution was held to its burden of proof and the case was lost due to the prosecution's failure to meet its burden. Yes, the defense won and Johnnie Cochran was a remarkable attorney, but the bottom line was the prosecution failed in many, many ways. Too much evidence that was available for use was not used. Also, most lawyers know that you never, ever have the defendant try to do anything in the presence of the jury that you are not absolutely sure he/she can do. Once I saw the prosecution have OJ try on the glove, I knew it was over. That was a bone-head move.



Edited to correct spelling.

[ChairmanAgnostic]

34. precisely

for years, i defended major corps that were killing people and screwing up our ecology. Did I like it? no. did I do my best, in these civil cases? sure. I hope I did.
Did I find a way out where my professional goals, clientele and my internal morals did not conflict? yes.
Would I use every civil tool at my disposal to aggressively represent my client? you bet. still do.

[merh]

44. Actually, civil cases such as the ones you mention would present a

greater ethical dilemma to me than does the defense of a criminal. I am sure that you have had many battles with yourself relative to the representations you mention. It is wrong for folks to use a broad brush when considering discussing lawyers, that they are only out for the money. Most folks that went to law school went in believing in the legal system, believing in the constitution and in protecting the constitution, believing they could do good with their degrees, believing that they could make a difference in this world. They graduate and obtain their license to practice and discover that the profession is filled with ethical and moral considerations that were never explained in law school, not to mention the practical considerations.

Lawyers are champions of our constitution. Most know that and that is what drives them, others have forgotten that because they have been caught up in the "business" of practicing law and lost sight of why they went to law school in the first place.

My hat is off to you that you have found the way to have your professional goals, clientele and internal morals not conflict. That is not an easy thing to do in these days, when the business is more important than the practice.

[hyphenate]

39. It's one of those situations where the legal system is less

clear than people think.

I think it's a matter of ethics with lawyers who still have principles. It's not a matter of defending someone you think is guilty, it's more a matter of representing someone who needs help to navigate the whole system for them. Every person in our country is presumed innocent until proven guilty, regardless of how many smoking guns, forensic evidence and witness testimony are revealed through an investigation.

The onus is on the prosecution to prove guilt, and not the other way around. It's essentially a game; the trick is for the DA or other prosecutor to show enough compelling evidence to the jury and judge that the person who is accused of a crime really did it. The defense, regardless of what they personally might think, is not trying to prove his client innocent, because the defendant goes into a trial presumed innocent, until proven guilty. It's because our system looks at the legal position of innocent until proven guilty that we have had many potential convictions overturned or simply to the point where the jury must feel that the prosecution hasn't proven guilt "beyond a reasonable doubt."

[meganmonkey]

43. If your answer is a flat-out 'No' then you probably

shouldn't become a lawyer

:shrug:

[Proud2BAmurkin]

46. Duh, the burden of proof is on THE STATE

This is, like, America?

[moondust]

48. Selectively.

Anti-war demonstrators? Yup.
"Robin Hood" crimes? Maybe.
George Bush or Dick Cheney? Never.

[ChairmanAgnostic]

49. ethically, the answer is pretty easy

Because you would have knowledge that they created an invasion and occupation based on a lie; that they would not hesitate to lie for a temporary gain or victory; that they will continue to lie, cheat, and worse, you could not be permitted to defend them, knowing that they would continue such behavior in their own defense.