Monday, June 26, 2006

Good Lawyer, Bad Lawyer, Part 3

Thanks to Raston for the great discussion. Here is his latest comment:

To me, there is a difference between presumed guilty and knowledge of guilt. I believe that where it should go is to find the truth. Sure, assume the person is innocent, but if he isn't it shouldn't be decided on a technicality either.

Now granted, I'm not saying that the prosecuting attorney was any less at guilt for what happened either.

I just see far too many flaws in a system that is designed to contest to win, rather than find the truth about the situation. Perhaps some of these technicalities should have 'reasonable avenues of answering' to provide better access to the truth.

Like I said before, I don't really have the answers to fix the system, but a case like that definately shows the flaws all to clearly to me.

Knowledge of guilt and presumption of guilt are effectively the same thing, once one steps in the courtroom.

Maybe it would help if you knew a couple of facts that I originally omitted because of space considerations.

First of all, the lawyer was a public defender assigned to the case. he did not have the power to decline representation.

Second, he originally advised this client to plead guilty to the assault charge, and the client refused, insisting on fighting this in court.

To that end, both the law and the lawyer must be blind to consequences, presume the charged to be innocent, and defend his client appropriately. if he had not, he would have broken his oath to society, a much larger and more important consideration than one client.

It may very well be a flaw in the system, but given the obverse, it is a flaw well worth having. the question is, which is worse: that occasionally guilty criminals go free due to incompetence of prosecutors, or that innocent people are incarcerated because lawyers are allowed to presume that people are guilty prior to trial?

I will take the former gladly any day of the week.

All lawyers seek the truth, or at least they are bound by creed to do so. Individual discrepancies aside, the law is designed to ferret out the guilty and preserve the innocent. If all parties do their job, 99% of the time justice is served. The defense attorney has vigorously defended his client, and despite that the weight of the evidence, presented properly by the prosecutor, finds the guilty guilty and justice is done.

Mistake of lawyer is NOT the same as mistake in the law or the legal process. That is the entire point. At the same time, in order to be sure that justice is properly served, all lawyers are bound to play their part. Believe me, even when a lawyer loses a case, if they defended their client properly, they have both done their job and earned a pay check.


Anonymous said...

And that my law learning friend is precisely why I chose to not continue on with law school after finishing with my Political Science / Pre-Law degree in my undergrad. I couldn't stomach the though of being forced to defend a person I knew to be guilty. I have need to sleep at night and wake up in the morning and to be able to look at my self in the mirror ;)

But even then, why can't there be a process in place to account for matters of technicallity? In the one case, why could not the judge have asked the question once the motion was brought for the witness to clarify? Is that not seeking the truth also?

Yes, the law should be blind, but that doesn't mean it has to be stupid in the process. How many more criminials wouldn't be let lose if there was a means to answer these 'technicallity' issues? And if it is a technicallity and the evidence is still enough to convict, why shouldn't it?

Perhaps the law is too complex in some cases and simplification is the answer, perhaps it is merely a matter of process to be added.


Enki said...

the judge could not ask because the witness had been dismissed. otherwise it is a very good question, and normally if the witness is still on the stand the judge has some discretion to ask questions (not much, and I have yet to take crim procedure so I'm not actually certain on that point).

oh, and just so you know, the vast majority of legal practice is in the civil arena. you could practice law for decades and never find yourself near a criminal. if that same objection is pointed at torts as well (which follows if you think about it), you could still practice law completely away from such quandries. In fact, I'd rather think you would be highly interested in, say, patent and copyright law (highly specialized) or even tax law (also highly specialized). if that is your only reason to avoid a legal carreer, it's a poor reason indeed.

Anonymous said...

Not the only reason, but the main one. Some if had to do with where I lived and most attorney's there were either divorce or criminal attorneys as there was very little work for what I was looking at (contract law) without being involved in the other.

So true, it wasn't the best of reasons, but it wasn't the only one :)

As for tax law, I would prefer to defend a person who showed me where he buried the bodies...


Anonymous said...

I might add to my previous content, that it had to do with where I grew up (and subsequentially went to undergrad). I grew up in WVa where jobs for lawyers were exceptionally limited and most of them were not in the field I would have chosen. At the time, I wasn't considering a move out of the state either (which I subsequentially did) :)

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