Incredibly audacious legal defense

[Wicked Pilot]

Don't we have judges for this sort of thing? You know, those people well versed in law who wear black robes and can put a stop to prejudicial defence arguements which lack in any legal merit.

[Keevan_Colton]

Well if we say that there is a defined line where 'sound' ends and 'zealous' begins then we have to ask who draws that line? Then once that's decided, where is the line drawn?

Is it really that hard to say that there's a difference between uncovering reasonable objective evidence to doubt a criminal charge and manipulating the ignorance and prejudice of the jury to do the same?

Richard Dawkins had a nice essay on the concept of trial by jury...which basically boiled down to the fact that if he was innocent he'd want tried by a judge and if he was guilty he'd want to play the jury lottery.

[SCRawl]

Police find evidence of man commiting a murder. Lawyer finds way to throw out evidence because he wasn't properly read his rights or there was no search warrant. Is it fair for this guy to get away with murder? Is the lawyer being morally corrupt when he finds this loophole?

Of course he's immoral. Do you disagree?

The problem a few people are having is realizing the difference between ethics and morals. It is immoral for the guilty man to go free. It is unethical for the defence attorney to set aside evidence which will set his client free.

If we're going to make our criminal justice system exclusively about morals, here in the real world, then things get really sticky; without some kind of mind-reading machine I believe it to be impossible.

[Durandal]

Don't we have judges for this sort of thing? You know, those people well versed in law who wear black robes and can put a stop to prejudicial defence arguements which lack in any legal merit.

They're concerned about getting their rulings reversed on appeal. Judges don't want to create an appealable issue if they don't have to. If that means letting some defense lawyer smear the victim, then he'll generally allow it.

[Lord Zentei]

What is the difference between 'zealous' and 'sound'?

Maybe it's because I'm an engineer rather than a lawyer, but I just don't see how bullshitting people in order to win can be considered "sound" in any sense of the word.

I'd be inclined to agree with you, though perhaps this could be resolved by broadening the definition of perjury? The problem is how that should be done such that it eliminates sophistry and deliberate misrepresentation without undermining the ability of lawyers to be flexible in their work. It seems a little hard to expect lawyers not to try their damndest.

Perhaps the difference between engineering and law in this matter is the competitive nature that is intrinsic to law which is largely absent in engineering. Also, if a bridge fails, there is no doubt who is responsible, but if a previously accused person commits crime (again?) you don't blame the defence lawyer.

[Wicked Pilot]

They're concerned about getting their rulings reversed on appeal. Judges don't want to create an appealable issue if they don't have to. If that means letting some defense lawyer smear the victim, then he'll generally allow it.

Pussies.

[Justforfun000]

I empathize with Mike in many respects. For example, I don't think it's right that a lawyer has the right to pull shit like yanking up every bit of sexual history of the client. I don't think that is relevant myself, it's only done as a smear tactic. People can do crazy wild things and then turn around and change their behaviour completely for some reason that we don't know. Some get conservative, some "find religion", etc. Past history is fucking pointless in and of itself.

[Stravo]

On the zealous defense - its the langauge in the code of ethics. All defendants are afforded a zealous defense by their attorneys. Zealous means you do your damndest to look out for your client's rights. If a crack dealer is brought up on charges of possesion and the defense attorney can prove that the search and seizure was illegal then he MUST do that even if it means his client gets off free for two main reasons:

One his rights were violated plain and simple.

Two and more esoteric is the idea that by defending the rights of even the guilty it is assumed that we're making sure the innocent don't get their rights trampled on.

The system has been set up so that we would rather want guilty people to go free than an innocent to go to jail. Now it doesn't work very well when you factor in things like oh say...money. A rich client will always get better representation, etc. I don't happen to think that's fair at all but what can you do?

I understand where Mike is coming from, believe me I do, part of the law school experience is actually to train you how to look at things differently in terms of morality and justice. Is it moral to defend a man you know is guilty? No. But is it more important to uphold the system that makes sure innocent people don't go to jail by defending that guilty man's rights as surely as if he were innocent? You have to decide that when you go into that profession.

Its a tradeoff in the sense that no one can know a man's heart, no one can really know guilt and innocence so we assume everyone is innocent and we defend the hell out of them to keep it all honest.

Mind you I am not in Criminal defense and never could be but I understand their job and their ethical obligations.

An interesting counterpoint would be if this child molester were hit by a bus on the way to court and a doctor could save him isn't that doctor obligated to? The difference between the doctor and the lawyer is that the doctor's job is saving lives and I think we all agree that saving a life is a moral imperative. Saving someone's rights? Who knows where that falls in the moral scheme of things.

[Stravo]

I empathize with Mike in many respects. For example, I don't think it's right that a lawyer has the right to pull shit like yanking up every bit of sexual history of the client. I don't think that is relevant myself, it's only done as a smear tactic. People can do crazy wild things and then turn around and change their behaviour completely for some reason that we don't know. Some get conservative, some "find religion", etc. Past history is fucking pointless in and of itself.

You know there are things such as Rape Shield laws that don't allow defense attorneys to bring up past sexual history of a rape victim. If your state doesn't enact such legislation is it the attorney's fault? No. Obviously the state legislature is saying that a woman's past sexual history is fair game or they would have addressed it as the states that have such laws do. We play by the rules we're given.

[Patrick Degan]

No matter what his lawyer tries to say, Thomas Hose is headed for the state pen. According to 31 Pennsylvania § 3122.1 (link), he's guilty of statutory sexual assault, which defines a complaintant as being under the age of 16 and where the defendant is more than four years older than the complaintant (and not related by marriage). The law also generally holds that consent is invalid where a minor or anyone held under duress is involved. Essentially, Hose has no defence —its a felony by definition.

The only purpose behind Eckart's line of argument may serve is to so obsfucate the issues at trial that he can get away with pleading his client down to rape-2, a B-felony, and a hope at segregation from the general population. Otherwise Hose is going away for kidnapping on top of rape-1, which means a life sentence. Which considering what happens to kiddie-rapers in prision effectively would be a death sentence.

[Durandal]

The only purpose behind Eckart's line of argument may serve is to so obsfucate the issues at trial that he can get away with pleading his client down to rape-2, a B-felony, and a hope at segregation from the general population. Otherwise Hose is going away for kidnapping on top of rape-1, which means a life sentence. Which considering what happens to kiddie-rapers in prision effectively would be a death sentence.

Boo-frickity-hoo.

[wolveraptor]

If a crack dealer is brought up on charges of possesion and the defense attorney can prove that the search and seizure was illegal then he MUST do that even if it means his client gets off free for two main reasons:

I've always thought it stupid that the client would get off free. Why can't he be jailed along with the policeman who violated his rights? Instead of letting both off free, punish them both.

[Patrick Degan]

The only purpose behind Eckart's line of argument may serve is to so obsfucate the issues at trial that he can get away with pleading his client down to rape-2, a B-felony, and a hope at segregation from the general population. Otherwise Hose is going away for kidnapping on top of rape-1, which means a life sentence. Which considering what happens to kiddie-rapers in prision effectively would be a death sentence.

Boo-frickity-hoo.

Just pointing out what the rationale behind Eckart's strategy probably is. If Hose does get done-in by his cellmates, I might be upset about it for all of two seconds.

[Kazuaki Shimazaki]

I understand where Mike is coming from, believe me I do, part of the law school experience is actually to train you how to look at things differently in terms of morality and justice. Is it moral to defend a man you know is guilty? No. But is it more important to uphold the system that makes sure innocent people don't go to jail by defending that guilty man's rights as surely as if he were innocent? You have to decide that when you go into that profession.

I've often wanted to ask someone like you myself. What does a lawyer do to talk himself into defending a rapist who admits he's a rapist (in principle, a client tells his lawyer the truth if he doesn't tell anyone else, so the lawyer can use all the info to come up with a defense).

How does letting that guy go free protect the rights of the innocent?

If the police violated procedures, then cook them and put them in jail next to the criminal, but if the evidence they got proves that the man is guilty, shouldn't it be allowed?

Surely the deterrent of being thrown into jail right next to their criminal would better deter cops from using illegal evidence than the present state where the worst thing that can happen to the cop is that his case gets dismissed?

[Omega18]

If a crack dealer is brought up on charges of possesion and the defense attorney can prove that the search and seizure was illegal then he MUST do that even if it means his client gets off free for two main reasons:

I've always thought it stupid that the client would get off free. Why can't he be jailed along with the policeman who violated his rights? Instead of letting both off free, punish them both.

The tricky thing is on alot of occasions the policeman who violated his rights can plausibly argue it was an honest mistake and not malicious. This makes it tough to justify a serious sentance for the policeman. This potentially can create situations where a policeman decides its worth it to put the criminal behind bars. A more serious situation might involve a law enforcement officer and pardons. An FBI agent could do something outragious to get someone caught and convicted, and then get pardoned by President Bush for his actions.

[Darth Wong]

The tricky thing is on alot of occasions the policeman who violated his rights can plausibly argue it was an honest mistake and not malicious.

How? Criminals can't just argue that breaking and entering was an honest mistake.

[Patrick Degan]

I understand where Mike is coming from, believe me I do, part of the law school experience is actually to train you how to look at things differently in terms of morality and justice. Is it moral to defend a man you know is guilty? No. But is it more important to uphold the system that makes sure innocent people don't go to jail by defending that guilty man's rights as surely as if he were innocent? You have to decide that when you go into that profession.

I've often wanted to ask someone like you myself. What does a lawyer do to talk himself into defending a rapist who admits he's a rapist (in principle, a client tells his lawyer the truth if he doesn't tell anyone else, so the lawyer can use all the info to come up with a defense).

How does letting that guy go free protect the rights of the innocent?

If the police violated procedures, then cook them and put them in jail next to the criminal, but if the evidence they got proves that the man is guilty, shouldn't it be allowed?

Surely the deterrent of being thrown into jail right next to their criminal would better deter cops from using illegal evidence than the present state where the worst thing that can happen to the cop is that his case gets dismissed?

You could ask Randall Dale Adams about that one.

[Omega18]

How? Criminals can't just argue that breaking and entering was an honest mistake.

Ok, an obvious one is police officers are allowed to enter houses for instance if they have plausible cause. I.E. a gunshot and a scream from inside a house (lets assume it sounds like the real thing and not from a movie) is a plausible cause to try to enter a house, with only possible question being if the police have to try knocking first before breaking in. A police officer might be able to argue they thought they had plausible cause even though legally they clearly did not. Another stunt a law enforcement officer might pull is getting a search warrent for another nearby house for a seperate crime and then "accidently" search the wrong house. A closely related strategy would be to arrange for a "typo" with the search warrent.

[Durandal]

Ok, an obvious one is police officers are allowed to enter houses for instance if they have plausible cause. I.E. a gunshot and a scream from inside a house (lets assume it sounds like the real thing and not from a movie) is a plausible cause to try to enter a house, with only possible question being if the police have to try knocking first before breaking in. A police officer might be able to argue they thought they had plausible cause even though legally they clearly did not.

I believe the term for that is "exigent circumstances". Or, as Lenny Briscoe once said, "Hey Ed! Hear that? Sounds like a woman in distress!"

And if a judge thinks it was a good faith mistake, he'll uphold the results of the search.

[Gil Hamilton]

But how can the zealous defense justify abuse of the victim in court? It's one thing to defend your client to the best of your ability, but it's a different kettle of fish to attack the victim. Worse, it does real world harm. As mentioned in my previous post, it makes reporting crimes like rape and molestation real trouble, because the victim knows that they are going to have to face it again and again in court, with the defense attorney telling everyone there that she wanted it, that it was conscentual and that she brought it on herself. How horrible is it to not only be raped but then grilled and verbally abused in front of an audience and basically be put on trial. The defendant is the one on trial, not the victim, but with the zealous defense, it's entirely fair and ethical to shift the blame to the victim.

That's disgusting. Defendants in court should have lawyers who defend them to the best of the ability, but it is completely indefensible viciously attack someone, shift the blame on to them and justify it as "defense".

[Kazuaki Shimazaki]

But how can the zealous defense justify abuse of the victim in court? It's one thing to defend your client to the best of your ability, but it's a different kettle of fish to attack the victim.

The best defense is a good offense - if you can discredit the victim by attacking, which is often also the Primary Witness for the Prosecutor, you are halfway towards winning.

[Imperial Overlord]

But how can the zealous defense justify abuse of the victim in court?

As long as humans lie (i.e. forever) a zealous defence has to include the ability to attack the victim and witnesses. People lie, people are mistaken, and people make false accusations. Until we can come up with something better (and I'm not holding my breath) the defence has to be able to go after everyone who testifies for the prosecution, including the victim.

[Kojiro]

But how can the zealous defense justify abuse of the victim in court?

Because at this point, without a trial, we can't be sure she's a victim, legally speaking. He's innocent right now, and an innocent man deserve the full protection of the law. It's not our job to decide ahead of time who's guilty.

The real issue here is the gap between cases where a zealous defense might get a guilty looking, but actually innocent man off and a clearly guilty man that is desperately clutching at straws. The law doesn't allow us to make the distinction, and errs on the side of innocence.

I'm not saying it's a good thing that an actual victim must endure such treatment, but it is somewhat necessary to maintain the integrity of the 'innocent until proven guilty' system. There are very real cases where the 'victim' wasn't a victim and merely spiteful or devious. I will say this case seems very open and closed but you can't go making exceptions because of how guilty someone looks. The facts and their method of acquisition must be tested if they are to be believed, especially when you're talking about someone's life.

As it stands, he's innocent at this very moment legally speaking. Any laywer treating him otherwise is acting as the jury/judge and skipping the trial, which is a miscarriage of justice. He just might be innocent, and that's what the trial, the judge and jury are for.

Also I'm not certian but if the accused confesses to the lawyer, can the lawyer not remove himself or moral grounds, even if the confession isn't admissible?

[Gil Hamilton]

The best defense is a good offense - if you can discredit the victim by attacking, which is often also the Primary Witness for the Prosecutor, you are halfway towards winning.

Firstly, that's a cliche and not a very accurate one.

Secondly, in what warped world is that justice? This isn't a game of chess or football, we are talking about real life and real people in a deadly serious situation. It's already having a negative impact on society. I've noticed that you cut out the bit in my post about the trend of rape and molestation victims to avoid reporting crimes against them because going through the lot again with a defense lawyer scumbag making them out to be sluts or bringing it on themselves right to their faces and trying their very hardest to break them under pressure to give the defense team more weapons to use against them is too much to bear. Suddenly, they are the ones on trial, not the person who assaulted them. Where is the ethics in that?

Hell, refer back to my first post in the thread, specifically about the court case mentioned in it. I saw the defense lawyer for one of the three boys on national television talk about how the girl had no morals and wanted to be a porn star and was such a huge whore that she wanted three boys to gangbang her unconscious body on a pool table and violate her with objects including a lit cigarette on videotape.

Tell me, in the OP or in the case I talked about, how does that in any way reflect justice? How is it moral and justifiable by a sane legal system? Claiming that in an abstract sense that it somehow protects innocent people in some hypothetical other case doesn't cut it. In those particular real cases, how is it ethical and justifiable?

[Justforfun000]

You know there are things such as Rape Shield laws that don't allow defense attorneys to bring up past sexual history of a rape victim. If your state doesn't enact such legislation is it the attorney's fault? No. Obviously the state legislature is saying that a woman's past sexual history is fair game or they would have addressed it as the states that have such laws do. We play by the rules we're given.

Really? I wasn't aware of those shield laws. That's a great idea.

They should be adopted as a federal law in my opinion.