Tuesday, May 16, 2006

Good Lawyer, Bad Lawyer

Many people don't like lawyers. The old joke is "everyone hates lawyers until they need one". One of the many reasons why people don't like lawyers is the fact that sometimes a lawyer must defend a guilty person, and sometimes that person is acquitted for whatever crime they are accused (and presumably guilty) of. I would posit, however, that if a good lawyer defends a guilty person, and that person goes free, it is not the good lawyer's fault, but instead the bad lawyer is to blame (the one charged, presumably, with prosecuting the crime). In other words, the law protects the innocent and prosecutes the guilty, and when justice isn't served it's because some lawyer made a mistake.

consider the following example:

A man assaults a woman with a gun. Assume that there are no problems with search and seizure, that there are no "technicalities" which would lead to an acquittal. The good lawyer is defending the man, the bad lawyer is the prosecutor. The man is charged with criminal assault.

The burden of proof is on the prosecutor to prove that the man is guilty of all elements of the crime. For assault, he must prove that the man was the person who indeed pointed the gun, that he intended to point the gun, and that he intended to cause her to have fear. The prosecutor must prove all of these things in order to prove assault. The defense need only prove one element is missing...

so what do they do?

Bad Lawyer: bad lawyer only has one witness: the victim... he questions her extensively, proving that the man indeed pointed the gun, and that he made threatening remarks proving that he intended to assault her. he finishes.

Good Lawyer: I have no questions your honor, and I move for summary judgement because the State has failed to make a prima facia case [summary judgement is when the judge decides that there is not enough evidence for the jury to decide, so the judge decides for them; a prima facia case is the burden on the prosecution to meet all of the 'elements' of the crime in their proof]

Judge: on what evidence do you make this motion?

Good Lawyer: the prosecution did not prove that the victim was afraid.

Judge: [looks at the transcript of her testimony] you're right. motion granted, case dismissed.

so the man goes free. the good lawyer did his job, the bad lawyer didn't, and the criminal goes free. two days later the man kills the woman. is it the fault of the good lawyer for doing his job and "getting his client off"? no. It's the bad lawyer's fault for not knowing the law and proving his case.


Anonymous said...

Ok humor me on this one since i'm not a lawyer type. But is the crux of the crime causing fear or the pointing of the gun.

I'm guessing it's probably something in the definition of assault that i'm over looking here.

Chandra said...

The law is out there to protect my right to have a gun pulled on me for non-scary reasons? I always thought the reason people hated lawyers was because they were *cough* anally retentive control freaks, which would certainly apply to the judge in the case you described as well.

Enki said...

the crux of this crime is "intent to cause fear". to answer your question, both are "the crux of the crime". without either, you have no crime. now i left a few facts out, but the two people were involved with each other, which may change your view of requiring her to feel fear (for assault, remember). it may not (chandra ;) ) but the point is, this was a slam dunk case, but the law requires that you prove all elements, and criminal assault is pretty tame compared to other, more complex issues. all he had to do was ask "were you afriad".

chandra, the judge just rules on matters of law. in this case, one of the matters was not proven. the judge had no choice, the law is very clear. the point of the story was that the prosecutor screwed up. the law itself was not at fault, the application was. bad lawyer, not bad law.

as to your question about 'the right to have a gun pulled on you for non scary reasons', suppose it's someone you know, say ME for example, who pulled the gun on you. and suppose you KNOW that the gun is not loaded. are you afraid? probably not, you know me. however, if you don't know the gun is not loaded, i can still be guilty of assault (it doesn't require a loaded gun, just a gun). see the distinction?

Anonymous said...

This is one of the reasons I'm against the system as it currently is. It isn't about justice, it is about who can afford the better attorney.

Should the victim be penalized because she couldn't afford anything but a public attorney? Should she be (or any other person prosecuting) be penalized because the other can afford a better attorney.

The problem is, that attorneys aren't there to get to the truth, they are there to contest the other. Do I have a solution to fix this problem? No. But yes, I still blame the 'good' attorney in this case, he fought to get a person he KNEW was guilty off and as a result someone died. To me that would make him an accomplice(sp) to the crime later committed, I know he isn't, but in my mind he is as much at fault for the person being dead as the criminal himself.

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