https://blog.apaonline.org/2018/08/08/the-ethics-of-defense-lawyers/
created by ADefiniteDescription on 13/01/2020 at 19:13 UTC
289 upvotes, 25 top-level comments (showing 25)
Comment by Snorlouak at 13/01/2020 at 21:52 UTC
425 upvotes, 16 direct replies
This article is trash. "Dr. Cole" is absurd. An American defense attorney is there to uphold the Constitution. To ensure every citizen is guaranteed their rights, because if you think it is ok to ignore the rights of the guilty, then it is ok to ignore the rights of everyone.
The sentiment of the defense attorney in the article that he trusts in the system and everyone deserves a zealous defenses IS the majority not the minority belief of defense attorneys.
Attorneys are not psychopaths if they defend the guilty.
Comment by [deleted] at 13/01/2020 at 21:57 UTC*
56 upvotes, 2 direct replies
Defense attorneys rarely say their client is innocent. Instead they say the state has not proven that their client is guilty. That is a subtle but important distinction.
They are only commenting on what the state has proven, not whether their client actually committed a crime. They are only arguing the state has not met its burden of proof.
Comment by Ginger_with_a_twist at 13/01/2020 at 21:44 UTC
117 upvotes, 4 direct replies
This blog post ignores the work of public defenders and other court-appointed defense attorneys. It is ignorant and honestly quite insulting to those of us who work solely on public defense cases. I can’t speak for all Defenders, but my work is based on my unshakable belief in the principle that everyone accused of a crime by the state has the right to a zealous defense. To argue otherwise is to spit in the face of our constitution.
Comment by [deleted] at 13/01/2020 at 22:49 UTC
35 upvotes, 0 direct replies
This article starts out bad and then veers into cloud cuckoo land with discussion of mob lawyers and the suggestion that defense attorneys are narcissists or psychopaths. Clearly the world this author is living in has no connection to our reality. Any narcissistic lawyer looking to amass a track record of court wins would never work as a defense attorney in the US criminal justice system, where the vast majority of defendants plead out and between 75% and 90% of defendants who *do* go to trial are found guilty. Dr. Cole clearly has learned everything she knows about law from TV shows.
Comment by Alexdagreallygrate at 14/01/2020 at 04:09 UTC
12 upvotes, 1 direct replies
13 year US public defender here. I’m just glad to see that the comments understand what drivel this blog post is.
When people ask me “How can you defend people you KNOW are guilty?” I tell them, that’s the EASY part. If the almighty government doesn’t convict them, then THEY failed.
You know what REALLY sucks? Representing someone and them pleading guilty when you KNOW they AREN’T guilty.
That shit keeps me up at night.
Not sure if it helps, but in my closing arguments at trial I almost always say:
The presumption of innocence is the bedrock of our society. In the 18th century BCE, King Hammurabi in Babylon wrote down the very first set of written laws. They were inscribed on clay tablets and then into pillars around the kingdom. Included in those laws was the idea that people accused of crimes are innocent unless they are proven guilty.
Those laws are at least 300 years older than the Ten Commandments. That’s how fundamental they are.
Everything we hold sacred or important, whether you are religious or simply respect the rule of law, is built upon the foundation of the presumption of innocence.
When the State must prove their case beyond a reasonable doubt, that burden isn’t just based on the words of the current law the judge read you, they’re based upon everything good upon which our civilization stands.
Comment by 5had0 at 14/01/2020 at 00:34 UTC
21 upvotes, 1 direct replies
This article is terrible. Essentially the author starts with the premise that it is ethically wrong to represent defendants , with no foundation, and then takes off from there. And instead of, I don't know, asking defense attorneys why they do what they do, the author ropes in a psychologist who jumps to defense attorneys being psychopaths or being diagnosed with narcissistic personality disorder, while mentioning the reasons that most defense attorneys take pride in their work as an aside.
Before law school I used to question how people could be defense attorneys, now it is my primary practice area. I have had major cases thrown out due to illegal searches. I've seen the comments under the news articles, "where is the justice? Stupid defense attorneys getting people off on technicalities is everything that is wrong with America!, etc." But those nights I go home and sleep just fine. I sleep well because I know that officer will never violate the constitution the same way again.
It's interesting how quickly people in the general public will say, "I don't care if the search was illegal, they found drugs!" But then don't stop and think, "I wonder how many people that officer illegally searched, found nothing, and then sent on their way?"
I'm not one of those people that believe all police officers are terrible but I've seen some absolutely egregious misconduct. Typically it is the defense attorneys who bring this conduct into the light. Defense attorneys are one of the few lines of... defense... against this misconduct and typically the only real remedy is getting these cases thrown out. Enough cases get thrown out due to illegal searches or other violations and those officers are shown the door.
But fundamentally the US justice system was founded on the idea that it is better for 10 guilty people to go free than to put 1 innocent person in jail. (I'm sure we've all seen different ratios there but the point stands.) Defendants are normally put in a david v goliath situation where they are facing down the immense resources on the state, so the burden of proof is tipped very far in the defendants favor. The idea that people are doing something unethical by helping people in those situations is absurd.
Finally, to end my ramblings, the article fundamentally misstated the actual issue in dispute in a criminal case. It is NOT innocent vs. guilty. The question is whether or not the state can prove each element of the charge beyond a reasonable doubt. A jury can wholeheartedly believe that the defendant committed the crime they were on trial on for but must find the defendant, "not guilty" if the state failed to prove each element of the offense beyond a reasonable doubt. "Not guilty" does not mean innocent. That is both my mind set and every other defense attorney I've ever spoken to mind sets when evaluating a case. What can the state prove "beyond a reasonable doubt"? Innocence does not enter into that equation.
/rant
Comment by philosophical_troll at 14/01/2020 at 02:10 UTC*
6 upvotes, 0 direct replies
“When I asked my friend how he is able to ignore his personal ethics/morals while defending a client he knows is guilty, he responded ‘because I trust the system’. When I queried some more, he indicated that he is more easily able to push past those personal boundaries by having faith that the justice system (and ultimately the jury) will do what they’re supposed to do (i.e. find the defendant
Looks like their friend even told the author how lawyers think but -
That said I think this friend of mine may be in the minority.
And there it is- the author was told literally how lawyers think but instead of reconsidering, they attributed it to the “exceptionalism” of their friend... because of course THEIR friends are “exceptional”. *rolleyes*
Comment by [deleted] at 13/01/2020 at 23:45 UTC
11 upvotes, 1 direct replies
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Comment by mongotongo at 13/01/2020 at 22:16 UTC
12 upvotes, 0 direct replies
My father was a public defender for his entire career. One night we were at home and my mother started discussing one of his current cases. She starts describing how his client murdered his child when my father interrupted rather loudly:
"Allegedly, allegedly. He has not been convicted in a court of law. Until he is convicted in a court of law, he is not guilty of any crime."
My mother than calmly backed down, saying "Okay okay".
Then when things quieted down, she turned to me and whispered "He did it."
Comment by SgathTriallair at 14/01/2020 at 00:20 UTC
13 upvotes, 0 direct replies
The author clearly went into the debate pre-convinced that defense lawyers are evil. This was blatantly obvious when they acknowledged that the research shows most lawyers are trying to uphold the law but then choose to reject that evidence and start haranguing a French lawyer.
The position of the author seems to be that it is immoral to try and help a person escape justice. What they don't get is that the entire purpose of defense lawyers is to sort out what the just act is.
Like many lay people who have strong religious convictions or pro-authority beliefs, the author takes the niave, and dangerous, position that the police are the ones who determine who is and isn't guilty of a crime. In our system though, the police just gather evidence so that a jury can decide who is guilty.
The author makes the same error of judgement that many outsiders to the criminal justice system make. They assume that investigating crime is easy and we rarely have any doubt over the truth. In reality, investigations are hard and most of the time we do need to question what we think is true.
This line of thinking is one of ther major gripes I have about religious people. Religion cultivates the idea that truth is clear and readily accessible. So when a situation gets confusion there is a tendency to try top cut through that gordian knot by simply declaring something true and refusing to consider alternatives.
Additionally, the author also fails to point out that in the vast majority of criminal cases in America the defense lawyer doesn't argue that the defendant is innocent. They instead assist thre defendant in preparing a plea bargain. So they help someone who made a mistake come to terms with the result of that mistake and find a way to move forward. To deny them this because we have a moral objection to helping bad guys would be unconscionable.
Comment by [deleted] at 13/01/2020 at 22:54 UTC*
3 upvotes, 1 direct replies
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Comment by donat3ll0 at 14/01/2020 at 03:28 UTC
3 upvotes, 0 direct replies
I had a defense lawyer buddy that described his job as the speed bump of the system. To ensure everyone else did their job correctly at each step of the process. No more, no less. Seemed reasonable to me.
Comment by scarface2cz at 13/01/2020 at 22:15 UTC
10 upvotes, 0 direct replies
Written like a person who doesnt have law education. moral compass, political affiliation, relationships. all that shouldnt matter in the court of law. what matters is law. there can be interpretations of its parts, but thats it. neither side, defense or in criminal cases state attorney should care about clients guilt or innocence and only focus on evidence for one or the other. if you bring morals and ethics into court, it opens endless possibilities for manipulation and skewing the facts, on top of already open possibilities given to both sides by interpreting law. without this stoic approach to law (especially criminal law since thats my field) we are putting elementary pillar of democracy at stake.
Comment by LanzenReiterD at 13/01/2020 at 23:32 UTC
6 upvotes, 0 direct replies
It's a shame, I would have liked to see an exploration of lawyers who defend the guilty, and abuse the process to prevent their clients feeling the consequences using loopholes or other tactics eg a company being sued for making its workers sick delaying a court decision until the plaintiffs die. Those people can't hide behind "trusting the system" or leaving it up to the jury to decide because they are explicitly trying to avoid those things.
Comment by emceedude at 14/01/2020 at 02:42 UTC
2 upvotes, 0 direct replies
This article is interesting but most of these comments are focused on how it portrays or doesn’t portray certain demographics of attorneys. Public defense attorneys were never mentioned and that’s a huge problem. Attorneys were portrayed as manipulative when most aren’t. But if everyone sets that aside it is interesting. The clash between moral code and professionalism was fascinating to read.
Comment by TundraSaiyan at 14/01/2020 at 04:09 UTC
2 upvotes, 0 direct replies
I really dislike the article's premise that a lawyer's personal and professional ethics are so distinct. I think those things are inextricably tied. Instead of taking the low hanging fruit, that is Godwin's Law and the Nuremberg trials; I would point to something one of my country's Supreme Court justices said in a guest lecture at my university: (it's been some time so I will paraphrase)
"[[About his time as a criminal defense lawyer] I could not - in good professional conscience - take up a client that I morally could not defend. If I believed my client was guilty, then I was incapable of giving them the fair and thorough defense they were entitled to.]"
He further went on to say...
"[Almost every single client that walked into my office was guilty of something. The issue was that the crime they committed was rarely the one they had been charged for.]"
These statements (again I apologize for any inaccuracies as I am writing from memory) suggest to me that the distinction that the author of this post wants to assert is flimsy at best. You don't become a different individual when you put on your work clothes. Both those roles an individual plays, as their private persona and their professional persona, will inevitably interplay with one another in a non-trivial way.
Comment by [deleted] at 13/01/2020 at 22:54 UTC
5 upvotes, 0 direct replies
The way I see it, I have an obligation to make sure that a trial is conducted fairly and that the jury is given the information to let them evaluate the prosecutor's evidence objectively. If my client has an affirmative defense, then it is up to me to explain that defense. Whether or not my client is guilty has nothing to do with my job, just like whether or not putting people in prison is a net benefit to society has nothing to do with the prosecutor's job.
Comment by jab011 at 13/01/2020 at 22:57 UTC
1 upvotes, 0 direct replies
Former defense attorney who will echo what others have said - my motivation was defending the constitutional rights of my clients, which the article does touch on:
“A lawyer might personally consider murdering lots of innocent people as abhorrent. However, there may be a superseding reason to defend a client against the state. They might, for example, feel that their client, as an individual person, is deserving of certain rights, no matter their actions. Or they may feel that when compared to the actions taken by the state, which are taken as de facto legitimate, the actions taken by their client are of a lesser degree.”
However, I think the article misses a main point. While people *outside* the profession obviously wonder about the morality of representing a person you know to be guilty, I don’t think most lawyers spend a lot of time thinking about it. It certainly didn’t matter to me - I just did the best I could for my clients within the framework provided to me. And I never felt like other lawyers, prosecutors included, thought less of me for representing someone who’s a total scumbag. To me, it speaks to an incredible, positive legal tradition, in America at least, that we view the right to a defense as so fundamental.
Having said that, I believe criminal defense work does draw certain type of individual. In my own case, it was a distrust of law enforcement not based on anything personal, but as an institution. I’d be lying if I said it didn’t feel good to get someone off for a crime I thought was stupid, or for a cop that I thought was shady. So in short, more than one thing can be true.
Comment by lirili at 14/01/2020 at 03:25 UTC
1 upvotes, 0 direct replies
Looking forward to the companion piece: 'The Ethics of Prosecutors'
Comment by Joeeoj010 at 14/01/2020 at 15:42 UTC
1 upvotes, 0 direct replies
Seems like a relevant scenario is when the defense lawyer is aware of strong incriminating evidence which for some reason isn't presented To the judge or jury, perhaps for some technical reason. This would be a case where the system fails to uphold its ideals. Upholding zealous advocacy when you know there is something very important missing from the story being presented seems unethical.
Comment by ashland_query at 14/01/2020 at 16:18 UTC
1 upvotes, 0 direct replies
A good friend of mine is a PD and represents some horrible people. One night she called me and the video service she was using didn't get back something she needed for her trial the next day, so I helped.
It is a really weird feeling to be spending time working towards the freedom of someone that did something horrible. I admire my friend, but I'll never do it again.
Comment by BenDjinn at 14/01/2020 at 18:16 UTC
1 upvotes, 0 direct replies
I found this to be a beautiful article with accounts from two educated, honest and relevant sources, the French lawyer and the psychologist. It wonderfully represents the culpability of law for it's own sake rather than being a means of protecting those who earned a lawyer's trust.
Comment by jimothybob at 14/01/2020 at 05:26 UTC
1 upvotes, 0 direct replies
Defense lawyer in civil rights cases here. If I don't do my job, then that means the plaintiff/prosecutor, judge, jury, appeals court, etc. can get away with not doing their jobs. Maybe that's "OK" from a moral perspective in an individual case where the defendant deserves to lose, but a justice system where those with power aren't held to their responsibilities creates a dangerous and dysfunctional system for all of us.
Sometimes I'll feel some kind of way about a client, but my feelings about it aren't really important to me because I take ultimate pride in my professionalism. If I don't defend the least sympathetic of clients, who will? What if there's nobody else? That's the most noble thing I can do to make our system better.
I occasionally have people ask me how I sleep at night doing what I do, expecting that I feel some kind of moral quandary. I don't. My stock answer: naked, two pillows, and a fan on.
Comment by mezonsen at 14/01/2020 at 02:58 UTC
0 upvotes, 1 direct replies
In my view, the death penalty is morally unjustifiable and so a defense attorney is the last line of defense against government sanctioned murder. It is ethical for a defense attorney to employ whatever means necessary to prevent this outcome.
Comment by [deleted] at 13/01/2020 at 22:20 UTC
0 upvotes, 1 direct replies
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