Thursday, June 15, 2006

Good Lawyer, Bad Lawyer revisited

I want to post an addendum to an earlier post found here regarding a story my criminal law professor told our class earlier this year. I received a few comments, and in particular I wanted to respond to this:
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.

You do raise some good points, but I have a few responses as well.

First of all, the victim in a criminal case does not "hire" an attorney. Criminal law cases are never about which side can "afford" the better lawyer, although often there is an inequality among defense attorneys. That, however, means that some defendants are better represented than others. The victim is, in a sense, repesented by the state, and that means the prosecuting attorney. In the story below, the prosecutor messed up but it had nothing to do with whether the victim could afford a good lawyer or not.

But to your more salient point, that attorneys are less interested in the truth than they are in winning. While that is true from a superficial standpoint, you are missing a very important ingredient in our legal system. Our system of criminal justice really can be reduced to two basic principles: that everyone is presumed innocent until proven guilty (the burden to do so is on the government), and that every person deserves their day in court (with a vigorous defense at their side).

There is a code of ethics that governs the legal profession, and it's not too dissimilar to that governing medical doctors. Among many other things, lawyers are required to vigorously represent their client, to the best of their ability, and to use every legal tool at their disposal to do so. This is intended to guarantee that those above two principles are strictly adhered to. If the defense attorney in this example had simply let his client be convicted, he could be sued for malpractice (and probably lose).

You see, defense attorneys have perhaps one of the most thankless jobs in the legal profession. They are required to defend those who are presumed by many to be guilty. Quite often they are guilty, in fact, but many times they aren't, and our legal system demands that they be presumed innocent, and have their day in court. This means that, in order to maintain its integrity, the lawyer drop pretenses and defend their client as vigorously as the law allows, and sometimes that means guilty people go free. It's the price we pay to retain our freedoms.

Remember, it was not the defense attorney's fault that this man was not convicted of criminal assault. His job was to defend his client, which he did. It was the prosecutor's job to prove guilt, not the defense lawyer's job to admit guilt. That man pled not guilty; it was his choice to do so. I believe you are misplacing guilt here. The guilty party is the man who shot the woman. The burden to keep that man off the street was on the prosecutor, and he failed to do so. As hard as it is to swallow, the only persons here who did their jobs were the defense lawyer and the judge (remember, the Judge agreed with Good Lawyer's reasoning, and they don't like letting criminals go free any more than you or I do).

Remember too that sometimes an attorney does not get to choose his client. We have, in our system, a right to an attorney. Sometimes that means that a lawyer is appointed to defend a certain client (typically a lawyer does have some discretion as to who they choose to represent). That lawyer STILL must defend that person as vigorously as if they were getting paid for it. The code of ethics rules the bar, and lawyers who fail to follow it end up disbarred.

In fact, as an aside, in most states it's much more difficult to pass the "character and fitness" portion of the bar exam than the substantive test. It's very important to the profession, and I like this example because it is such a great illustration of just this issue.


Anonymous said...

Great explanation Enki. I hadn't thought of it that way before. It's so easy to see the defense attorney as a 'slime bag' for defending someone we presume to be guilty, when it is there job to defend that person as innocent until proven. If they didn't do everything in their power to defend their client then where would we be? Those presumed guilty wouldn't get a fair shake or representation and many more innocent people would go to jail.


Anonymous said...

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.


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