moral issues with working criminal defense? Forum

[Omerta]

This is pretty close to the reality you see in many PD offices. The thing you have to understand is that the PDs are going to approach things from the POV of either 1) "he's innocent and there's another explanation of the crime" or 2) "he commit a bad act but there's no proof he intended to [bad felony goes here]". And they have to in order to give their client the best defense possible.

Apparently (2) is a dumb justification/rationale. Could you explain to me why since our resident criminal law wunderkind declined to give judicious justification for his or her position?

[A'nold]

Exactly. Criminal defense is about protecting citizens against the government. It's about holding our government to a high standard so that our constitutional rights aren't trampled upon. It's about making sure all the players (police, prosecutors, etc.) play by the rules. It's very important and honorable work, but you can't go in with the hope that all of your clients will be wrongly accused. Some will be guilty, but it's your job to assure that your client gets a fair trial. "Getting off on a technicality" could mean an acquittal because the defense saw that evidence obtained through an illegal search was excluded. That's protecting an individual's 4th amendment rights!

This is pretty close to the reality you see in many PD offices. The thing you have to understand is that the PDs are going to approach things from the POV of either 1) "he's innocent and there's another explanation of the crime" or 2) "he commit a bad act but there's no proof he intended to [bad felony goes here]". And they have to in order to give their client the best defense possible.

But they think about it in terms of upholding the system. It's not just "I'm going to try to keep this guy out of prison", it's "this guy will be convicted on inadmissible evidence, and if we let this happen then they'll keep trying to introduce inadmissible evidence and get people convicted unfairly". That's important, especially because the rules of evidence exist for a reason and usually the reason the rule is there to exclude the evidence is to deter the police/prosecution from doing something unfair to future defendants.

Cases are rarely that cut-and-dry that it's obvious someone did something but they "got off on a technicality". The "technicality" in cases that warrant overturning a conviction or dismissing charges against a highly publicized defendant usually is the dismissal of the only evidence/testimony connecting the defendant to the crime. Of course the prosecution will always call it a technicality and try to look good in the press, and the large pro-enforcement part of the public will eat that up, but if the guy was really guilty they should've had other evidence to convict him with anyway.

It's chess. The defendants, the victims, the prosecutors and the defendants are all pieces on the board. The winner or loser in the game is the American public, who (oddly enough) is playing both sides, with civil rights on the one and criminal enforcement on the other.

Exactly. This is the first prong of my "I understand this, but not that" post above. I get upholding the Constitution. However, the only Constitutional right you are really upholding in most cases is the right to a fair and speedy trial or whatever. This is where it would get very hard for me. It is in the negotiation for pleas and sentencing phases that get into the murky ethical questions, at least for me. In those situations the focus is highly individual and you are essentially being a strong advocate for a potentially very bad and very dangerous individual. That's some hard stuff.

[A'nold]

These mistakes are often very difficult to fix: if trial or appellate counsel are ineffective, state habeas proceedings often provide the only avenue for relief, and the right to counsel typically does not attach in such proceedings. An incarcerated inmate litigating pro se has almost no chance of success.

On top of that, ever since the federal courts said that procedural default is a valid reason to deny habeas relief, more states have been doing the same thing. "You have no right to competent counsel on appeal, but since your incompetent counsel on appeal could've raised this issue and didn't, you waived it. Habeas denied."

If you get convicted your life is pretty much fucked. Those few lucky enough to have DNA evidence exonerating them, and to be able to get a new proceeding that accepts that evidence, are probably outnumbered by the ones who get no chance at relief despite being innocent of the crime they were charged with. That makes giving people the best possible representation at the trial level even more important.

Another hard thing morally (though I do not think this should play a role in how vigorously a D is advocated for) is that these "innocent people" are people like, say, gang members who have killed, robbed, raped, etc. but were innocent for THAT exact crime. On a kind of metaphysical level, they are not "innocent." Obviously we are not omniscient observers that punish morality in this country and that is why we are charged for our exact crimes, but you have to admit it is still a strange, uncomfortable feeling to defend a very, very bad person that may have done much worse things than that which he is charged at that moment.

[vanwinkle]

Exactly. This is the first prong of my "I understand this, but not that" post above. I get upholding the Constitution. However, the only Constitutional right you are really upholding in most cases is the right to a fair and speedy trial or whatever. This is where it would get very hard for me. It is in the negotiation for pleas and sentencing phases that get into the murky ethical questions, at least for me. In those situations the focus is highly individual and you are essentially being a strong advocate for a potentially very bad and very dangerous individual. That's some hard stuff.

I've worked enough in criminal law that I want to object to this the way practicing criminal lawyers do. It's bullshit, or more specifically, it's the most common fallacy of law students. The focus of criminal law in law school is Constitutional rights, and while they're important, that's not the bulk of the law you're defending. It's very rare in the law that you have a broad Constitutional right being violated by anyone, because those are pretty clear-cut for the most part. (There are exceptions, especially with the shifting Confrontation Clause doctrine post-Crawford, but I'm just pointing out I'm aware of the exceptions so it doesn't become a big side argument.)

My point is this: Most criminal defense, when it comes to protecting people' legal rights, involves either 1) state law, which can be broader than federal law, 2) rules of procedure, such as the rules of evidence, which vary by state, and 3) fact-based application of the law, which is very narrow and often only protects your client, although doing so prevents the law from creeping and expanding into an area it didn't exist before.

Criminal appeals are significant because they actually make new criminal law. Technically this is often referred to as "statutory interpretation" or "elaboration on established common law principles" but in all honesty there are cases even today that regularly create new precedent on defendants' rights at the state level. Failing to fight hard to keep the law from expanding in an area allows it to do so, which makes it easier to violate future defendants' rights.

For example, I worked pro bono on a case just a couple weeks ago that involved a man convicted on a single piece of evidence. The evidence was admitted despite being hearsay, under the "excited utterance" exception in that jurisdiction, despite the fact that it was neither excited nor an utterance. I was doing research for the appeal, which will ultimately set a precedent in that jurisdiction saying that either 1) the excited utterance exception has limits for a reason and this evidence must be disallowed for being beyond those limits, or 2) the excited utterance exception has a broad enough scope to allow this evidence despite not meeting the existing requirements in this jurisdiction for doing so.

#2 is dangerous because it gives prosecutors in future cases broad scope in that jurisdiction to admit hearsay evidence. They can point to that precedent-setting appeal and go, "You should admit my hearsay evidence here because it meets the requirements as much as the evidence there did." And then it's much harder for the defense to exclude that evidence than it was before, and suddenly the prosecution is admitting hearsay in cases where it's really ultimately unfair and convicts defendants despite the lack of actual direct evidence.

The focus is often very individual, but just because something doesn't involve the Constitution doesn't mean you're not upholding someone's right to a fair trial.

[vanwinkle]

Another hard thing morally (though I do not think this should play a role in how vigorously a D is advocated for) is that these "innocent people" are people like, say, gang members who have killed, robbed, raped, etc. but were innocent for THAT exact crime. On a kind of metaphysical level, they are not "innocent."

What? Many people who were exonerated on DNA evidence were people who had no criminal records or nothing serious in their background. This is especially the case in rape/sexual assault cases where the DNA evidence down the road pointed to someone else who did have a prior criminal history (which is why their DNA is in the criminal system) while the exonerated defendant didn't. You end up with someone completely innocent who was convicted of a single rape/assault, when it turns out the actual perpetrator was the kind of serial offender you're talking about.

Assuming that an "innocent person" in jail is someone who is probably guilty of another crime anyway is just wrong. It's just plain wrong and it's not how fairness of our legal system works at all. You're making an unfair moral judgment of people based on a single flawed data point, which is their (wrongful) conviction.

Aside from that... if the worst thing that someone did before was get convicted of shoplifting because they got caught trying to steal a DVD from a Best Buy once, and they already did their time for that and have rejoined society productively, and then they're convicted of murder, is that something they "metaphysically" deserve if they didn't do it?

[Fark-o-vision]

From speaking extensively to an ADA, I think people on here largely have the wrong attitude towards criminal defense. Often, it comes down to simply ensuring your client is treated fairly under the law. Guilt or innocence is moderately inconsequential, because the function of the job is to ensure that the law is fairly and evenly applied. Of course, there must be a cutthroat side to it, but largely criminal defense attorneys see themselves more as stewards of civil liberties.

Also, rule number one of criminal defense seems to be that you never, never consider the guilt or innocence of your client. If you can't apply a fact pattern to their case that most strongly supports their desires, then you have no business being there. My ADA friend didn't get into criminal defense for exactly that reason, although he claimed he saw the work as more intellectually stimulating.

[A'nold]

Exactly. This is the first prong of my "I understand this, but not that" post above. I get upholding the Constitution. However, the only Constitutional right you are really upholding in most cases is the right to a fair and speedy trial or whatever. This is where it would get very hard for me. It is in the negotiation for pleas and sentencing phases that get into the murky ethical questions, at least for me. In those situations the focus is highly individual and you are essentially being a strong advocate for a potentially very bad and very dangerous individual. That's some hard stuff.

I've worked enough in criminal law that I want to object to this the way practicing criminal lawyers do. It's bullshit, or more specifically, it's the most common fallacy of law students. The focus of criminal law in law school is Constitutional rights, and while they're important, that's not the bulk of the law you're defending. It's very rare in the law that you have a broad Constitutional right being violated by anyone, because those are pretty clear-cut for the most part. (There are exceptions, especially with the shifting Confrontation Clause doctrine post-Crawford, but I'm just pointing out I'm aware of the exceptions so it doesn't become a big side argument.)

My point is this: Most criminal defense, when it comes to protecting people' legal rights, involves either 1) state law, which can be broader than federal law, 2) rules of procedure, such as the rules of evidence, which vary by state, and 3) fact-based application of the law, which is very narrow and often only protects your client, although doing so prevents the law from creeping and expanding into an area it didn't exist before.

Criminal appeals are significant because they actually make new criminal law. Technically this is often referred to as "statutory interpretation" or "elaboration on established common law principles" but in all honesty there are cases even today that regularly create new precedent on defendants' rights at the state level. Failing to fight hard to keep the law from expanding in an area allows it to do so, which makes it easier to violate future defendants' rights.

For example, I worked pro bono on a case just a couple weeks ago that involved a man convicted on a single piece of evidence. The evidence was admitted despite being hearsay, under the "excited utterance" exception in that jurisdiction, despite the fact that it was neither excited nor an utterance. I was doing research for the appeal, which will ultimately set a precedent in that jurisdiction saying that either 1) the excited utterance exception has limits for a reason and this evidence must be disallowed for being beyond those limits, or 2) the excited utterance exception has a broad enough scope to allow this evidence despite not meeting the existing requirements in this jurisdiction for doing so.

#2 is dangerous because it gives prosecutors in future cases broad scope in that jurisdiction to admit hearsay evidence. They can point to that precedent-setting appeal and go, "You should admit my hearsay evidence here because it meets the requirements as much as the evidence there did." And then it's much harder for the defense to exclude that evidence than it was before, and suddenly the prosecution is admitting hearsay in cases where it's really ultimately unfair and convicts defendants despite the lack of actual direct evidence.

The focus is often very individual, but just because something doesn't involve the Constitution doesn't mean you're not upholding someone's right to a fair trial.

Thank you for that information. See, this is what I was asking in my first post. I'd love to hear more arguments than "me upholdz constitution!"

I will say though that my "protecting the Constitution" statement was far too broad. I also meant things like you listed above. I guess anything that has a broader application than entirely individual. If something may help to set precedent like a rule of evidence question then I think that is still the same line of reasoning as the protecting the Constitution rationale.

If it is highly unlikely that this individual situation will serve the public good by setting future evidentiary precedent, then my question once again pops up. For example, how does arguing for a prosecutor to drop the assault charge in, say, a rape case (maybe not the best example) for the D to agree to plead guilty serve any public good? It serves some good on the prosecution side, like saving time and money, but as for the D, he reaps the entire benefit of charges being dropped for something he really did, regardless of whether or not he has learned any lesson or is even remorseful in the least.

[A'nold]

From speaking extensively to an ADA, I think people on here largely have the wrong attitude towards criminal defense. Often, it comes down to simply ensuring your client is treated fairly under the law. Guilt or innocence is moderately inconsequential, because the function of the job is to ensure that the law is fairly and evenly applied. Of course, there must be a cutthroat side to it, but largely criminal defense attorneys see themselves more as stewards of civil liberties.

Also, rule number one of criminal defense seems to be that you never, never consider the guilt or innocence of your client. If you can't apply a fact pattern to their case that most strongly supports their desires, then you have no business being there. My ADA friend didn't get into criminal defense for exactly that reason, although he claimed he saw the work as more intellectually stimulating.

To the bolded: see, if this "serves a greater overall purpose" to help the innocent, then it has validity. But if you are just advocating to help those people, why are you helping them when they are not the victims? This goes back to my whole rehabilitation argument. Why do PD's feel that even the most evil criminals deserve a lesser sentence and some kind of second chance that they have shown no indication that they deserve?

[vanwinkle]

If it is highly unlikely that this individual situation will serve the public good by setting future evidentiary precedent, then my question once again pops up. For example, how does arguing for a prosecutor to drop the assault charge in, say, a rape case (maybe not the best example) for the D to agree to plead guilty serve any public good? It serves some good on the prosecution side, like saving time and money, but as for the D, he reaps the entire benefit of charges being dropped for something he really did, regardless of whether or not he has learned any lesson or is even remorseful in the least.

In this case, keep in mind that the two sides do balance against each other. If it's a really heinous offense and there's real evidence against it, then the prosecution will probably either insist on a plea that includes a serious felony charge or take it to trial. The threat of going to trial often motivates the defendant to accept a plea, even if it doesn't involve dropping the major felony charges. Perhaps the best his defender can do for him is a sentence that's at the minimum range for that felony. The prosecutor benefits by getting a conviction without a trial that could still go badly for them, the defense counsel has done his job by securing a plea his client is happy with, and society benefits because the guy goes away for at least a few years and has a criminal record.

In all honesty, the bulk of cases do involve pleas, but the bulk of cases also involve sufficient evidence to convict and a client who knows he did it and just wants to avoid the maximum jail term. If the prosecutor seriously drops the charges down from felonies to a misdemeanor or something like that, it's because he has a weak hand (either through weak evidence, unreliable witnesses, or a belief that a jury would be sympathetic to the defendant) and he's making that decision because the risk of acquittal is high enough that he'd rather take the misdemeanor plea and get something. Prosecutors are very reluctant to yield anything significant and will fight until they know they have to give in order to get a plea, and even then only when they feel they need the plea. Often, pleas involve agreeing to let sentences run concurrently instead of consecutively and for the prosecutor to recommend the minimum sentence, but that's it, they'll threaten to go to trial if the defendant won't accept that plea, and then they'll do it.

On the defense side, arguing for dropping top charges every time ensures that your client will benefit in those weak cases and keeps the prosecutors on their toes so they can't just get maximum sentences for everyone they charge regardless of evidence or odds of success. If you think about it that way, then both roles are very important, and the system only works well if they both do their jobs to the fullest, even at the plea bargaining stage.

Finally, in many jurisdictions, allocution is part of plea bargaining. This means that the defendant must admit what he did wrong and accept guilt for it on the record. It's not a hard requirement that a defendant does this, but I've seen where a judge will refuse to grant the negotiated plea if the defendant does not allocute. The judge can then take the defendant's remorse into account when deciding what sentence to give. Often the prosecutor will agree to recommend a minimum sentence to the judge as part of the plea deal, but it's still the judge's discretion and he can give a longer sentence (within the range of the charge that was plead) if he feels it's appropriate. In such jurisdictions, it's part of the risk of taking a plea that the defendant assumes, knowing that he could receive a longer sentence than what the prosecution recommends.

And judges can reject plea deals if he thinks they're too unjust.

It's not like a defense lawyer can just go, "Hey, you've got tons of evidence, but if you drop the rape and aggravated assault charges we'll plead to misdemeanor assault" and the prosecutor and judge both go "okay". That's not how the system works anywhere.

Does that make sense to you? I hope so.

[fatduck]

It's not like a defense lawyer can just go, "Hey, you've got tons of evidence, but if you drop the rape and aggravated assault charges we'll plead to misdemeanor assault" and the prosecutor and judge both go "okay". That's not how the system works anywhere.

except in Baltimore















The Wire was a documentary, right?

[Fark-o-vision]

From speaking extensively to an ADA, I think people on here largely have the wrong attitude towards criminal defense. Often, it comes down to simply ensuring your client is treated fairly under the law. Guilt or innocence is moderately inconsequential, because the function of the job is to ensure that the law is fairly and evenly applied. Of course, there must be a cutthroat side to it, but largely criminal defense attorneys see themselves more as stewards of civil liberties.

Also, rule number one of criminal defense seems to be that you never, never consider the guilt or innocence of your client. If you can't apply a fact pattern to their case that most strongly supports their desires, then you have no business being there. My ADA friend didn't get into criminal defense for exactly that reason, although he claimed he saw the work as more intellectually stimulating.

To the bolded: see, if this "serves a greater overall purpose" to help the innocent, then it has validity. But if you are just advocating to help those people, why are you helping them when they are not the victims? This goes back to my whole rehabilitation argument. Why do PD's feel that even the most evil criminals deserve a lesser sentence and some kind of second chance that they have shown no indication that they deserve?

I'm not arguing with your premise, just suggesting that being a DA requires a special outlook on the law, i.e., seeing it as a good in and of itself. It's also the belief that it should be applied fairly. The DA believes that his client deserves a lesser sentence because that's the norm considering his crime, or because the DA understands that for Justice to work there has to be at least one person in a position of power willing to defend whatever declaration regarding innocence the accused provides.

Also, if they stop believing int he rehabilitative effort of justice, then what purpose does any of it serve?

[A'nold]

If it is highly unlikely that this individual situation will serve the public good by setting future evidentiary precedent, then my question once again pops up. For example, how does arguing for a prosecutor to drop the assault charge in, say, a rape case (maybe not the best example) for the D to agree to plead guilty serve any public good? It serves some good on the prosecution side, like saving time and money, but as for the D, he reaps the entire benefit of charges being dropped for something he really did, regardless of whether or not he has learned any lesson or is even remorseful in the least.

On the defense side, arguing for dropping top charges every time ensures that your client will benefit in those weak cases and keeps the prosecutors on their toes so they can't just get maximum sentences for everyone they charge regardless of evidence or odds of success. If you think about it that way, then both roles are very important, and the system only works well if they both do their jobs to the fullest, even at the plea bargaining stage.

From a macro perspective, this makes perfect sense. Justice is more likely to be done when you have two sides presenting the best case and hopefully something in the middle will best represent true justice. In a truly efficient system, there would be no need for this and the sentences would be perfectly just every time. I understand that this is idealistic. It does seem like a less adversarial system and more cooperative system would better serve true justice. However, and I think this gets at the heart of my question, this cannot work, at least in our society, where there are vast differences in ideals. I guess my moral convictions side more with being "harsher" on criminals than not. For example, hand holding violent criminals compared to the death penalty. If a gun was put to my head, I'd be a death penalty person more than a "let the murderer off b/c we need to love him" extreme. The hard part for me though is that I am not an extreme thinker; I love middle ground. In fact, I am in disagreement about 95% of the time in the Supreme Court cases decided in the "crime control" era (the Nixon appointees and beyond). My tendency is usually to agree with Justice Marshall.

It's just that, with the two sides of the adversarial system, I cannot understand the gung-ho pro-defense stance. I understand everything you have said and am grateful for you shedding some more light on the subject, but I can never take that final step where I would want to be a strong advocate for, as someone said above, "scum." I can be an advocate for our rights as citizens of the country and states, but not empathize with a rapist, child-molester, serial killer more than with the victims enough to where I could give 100% effort to advocate for them.

I love this subject b/c I will be working in prosecution this summer. I almost gave up on the idea of prosecution b/c I think some very immoral things can happen on that side of the spectrum. However, I feel like on the side of prosecution you have more power to bring true justice to the situation (as close as possible, of course) through prosecutorial discretion. While it isn't perfect and there is a backdrop of politics, I think you would more often be able to weight both sides of the coin and find SOME way to make the situation fairer to both sides. This is a tough subject.

[A'nold]

From speaking extensively to an ADA, I think people on here largely have the wrong attitude towards criminal defense. Often, it comes down to simply ensuring your client is treated fairly under the law. Guilt or innocence is moderately inconsequential, because the function of the job is to ensure that the law is fairly and evenly applied. Of course, there must be a cutthroat side to it, but largely criminal defense attorneys see themselves more as stewards of civil liberties.

Also, rule number one of criminal defense seems to be that you never, never consider the guilt or innocence of your client. If you can't apply a fact pattern to their case that most strongly supports their desires, then you have no business being there. My ADA friend didn't get into criminal defense for exactly that reason, although he claimed he saw the work as more intellectually stimulating.

To the bolded: see, if this "serves a greater overall purpose" to help the innocent, then it has validity. But if you are just advocating to help those people, why are you helping them when they are not the victims? This goes back to my whole rehabilitation argument. Why do PD's feel that even the most evil criminals deserve a lesser sentence and some kind of second chance that they have shown no indication that they deserve?

I'm not arguing with your premise, just suggesting that being a DA requires a special outlook on the law, i.e., seeing it as a good in and of itself. It's also the belief that it should be applied fairly. The DA believes that his client deserves a lesser sentence because that's the norm considering his crime, or because the DA understands that for Justice to work there has to be at least one person in a position of power willing to defend whatever declaration regarding innocence the accused provides.

Also, if they stop believing int he rehabilitative effort of justice, then what purpose does any of it serve?

Deterrence or retributive concerns, right?

[Anonymous Loser]

The DA believes that his client deserves a lesser sentence because that's the norm considering his crime, or because the DA understands that for Justice to work there has to be at least one person in a position of power willing to defend whatever declaration regarding innocence the accused provides.

Prosecutorial discretion only works this way in law review articles. In reality, the only way a case is getting nolle prosequi'd is if the case is unwinnable. Plea deals aren't designed to protect the defendant: they are designed to allow the district attorney's office to get a conviction without using up scarce resources.

[Cupidity]

when I did criminal defense, I found it really helped to develop a firm belief that everyone fucks up and people deserve a second chance.

[A'nold]

The DA believes that his client deserves a lesser sentence because that's the norm considering his crime, or because the DA understands that for Justice to work there has to be at least one person in a position of power willing to defend whatever declaration regarding innocence the accused provides.

Prosecutorial discretion only works this way in law review articles. In reality, the only way a case is getting nolle prosequi'd is if the case is unwinnable. Plea deals aren't designed to protect the defendant: they are designed to allow the district attorney's office to get a conviction without using up scarce resources.

I think the whole "prosecutors never use prosecutorial discretion" thing is a little overblown. Sure, the worst types or even the stereotypical prosecutor may be the uncaring, selfish, win it all or nothing kind of people. I think most people are more level headed and caring than this stereotype. Plus, while it is a political office, I doubt people pay enough attention for it to matter in 99% of all cases that come though court AND this likely only applies in high scrutiny, high publicity places (mainly big cities).

[A'nold]

when I did criminal defense, I found it really helped to develop a firm belief that everyone fucks up and people deserve a second chance.

Yeah but where is the line drawn? We used to know this one piece of crap dude that had actually killed somebody while drunk driving. He was arrested about once every few months during the time I knew him and he only ever went to jail once for like six months. Dude would fight cops and drive w/out a license while completely drunk and on drugs and he kept slipping through the cracks in the system, a judge continuously "giving him a second chance."

[Fark-o-vision]

The DA believes that his client deserves a lesser sentence because that's the norm considering his crime, or because the DA understands that for Justice to work there has to be at least one person in a position of power willing to defend whatever declaration regarding innocence the accused provides.

Prosecutorial discretion only works this way in law review articles. In reality, the only way a case is getting nolle prosequi'd is if the case is unwinnable. Plea deals aren't designed to protect the defendant: they are designed to allow the district attorney's office to get a conviction without using up scarce resources.

I think the whole "prosecutors never use prosecutorial discretion" thing is a little overblown. Sure, the worst types or even the stereotypical prosecutor may be the uncaring, selfish, win it all or nothing kind of people. I think most people are more level headed and caring than this stereotype. Plus, while it is a political office, I doubt people pay enough attention for it to matter in 99% of all cases that come though court AND this likely only applies in high scrutiny, high publicity places (mainly big cities).

I would agree. Maybe it depends on where you live, but around here it seems that if you're willing to make things easy on the prosecutor, they'll go that route. Maybe it's different there, but I know a guy who got his D.U.I. reduced.

I would also agree that the theory works the way you're suggesting, but there is an implied mutual benefit to it. In busy areas (like San Bernardino county) it often works, in practicality, in the manner I've suggested.

Edit: I wasn't trying to suggest the single example of the D.U.I. can be extrapolated out to all cases (though it sounds that way). I was just tossing it in because, as I understand, D.U.I.'s are aggressively pursued usually.

[vanwinkle]

From a macro perspective, this makes perfect sense. Justice is more likely to be done when you have two sides presenting the best case and hopefully something in the middle will best represent true justice. In a truly efficient system, there would be no need for this and the sentences would be perfectly just every time. I understand that this is idealistic.

This is exactly the problem, that a perfect system is idealistic. In the real system that we have now, you have biased police, biased prosecutors, biased judges, biased juries, and, yes, biased public defenders. Everyone brings their own slanted views into the room, and you need a way to cancel them out in a manner that's fair to everyone involved.

It does seem like a less adversarial system and more cooperative system would better serve true justice. However, and I think this gets at the heart of my question, this cannot work, at least in our society, where there are vast differences in ideals.

Exactly.

It's just that, with the two sides of the adversarial system, I cannot understand the gung-ho pro-defense stance. I understand everything you have said and am grateful for you shedding some more light on the subject, but I can never take that final step where I would want to be a strong advocate for, as someone said above, "scum."

Most successful public defenders are people who do not regard their clients as "scum" no matter what they have done. They regard them as human beings with rights worth defending, because all of us are human beings with rights worth defending. They would defend you too, even if you were brought in on rape or murder charges and everyone else in the world hated you.

You see things right now from the POV of omnipresent knowledge. You know you're innocent, you know you're morally upright and clean. However, imagine that you've been arrested anyway, because the police have two witnesses willing to testify they saw you running from the scene, and one who says he heard you making an offhand comment about how the victim "was an evil person and deserved to die".

Wouldn't you want as your advocate someone who fought for you, even if you had no way of proving to them that none of that was true? The prosecution has witnesses showing you were there and witnesses showing motive, who don't appear to know each other or have a known motive to lie. In your world, the public defender should look all of that and tell you, "Well, if your guilt were really at issue then I'd defend you harder, but since they've got a lot of evidence that says you did it, I'm only going to help you plea to avoid the death penalty."

Maybe in the course of the investigation or trial, it'll come out why the witnesses each had a motive to lie, or that they all knew each other and could've conspired to lie about you, or that only one of them lied and the others said what they did after a little encouragement from the police. Or maybe you don't get any proof like that at all, and it's just a question of, do you deserve to go to jail for decades and possibly the rest of your life on the testimony of three witnesses and no evidence?

Things like this aren't that common, but they do happen, and because they do happen, that means that it's hard to summarily judge someone as "scum" before you even know all the facts. And if those people weren't there standing by their clients and defending them, innocent people who got stuck in that situation would end up getting convicted over and over again. It still happens, but it happens less because public defenders refuse to judge their clients as "scum" and actually keep digging.

Also, if someone really is guilty, and tells the public defender that, it does tie their hands ethically. They have obligations to the profession, and that includes preventing their client from lying under oath, for example. You can't let a defendant take the stand and testify that he was never there if he bluntly told you that he was and you know that to be true. So there are limits on what they can do for the ones they do truly know are guilty.

I can be an advocate for our rights as citizens of the country and states, but not empathize with a rapist, child-molester, serial killer more than with the victims enough to where I could give 100% effort to advocate for them.

Then you shouldn't be a public defender, end of story. Especially since you would treat them as a "rapist" or a "serial killer" from the get-go instead of as a "suspected rapist" or "the accused". Until they're convicted they're still presumed to be innocent under our legal system, and it sounds like you would fail at that.

However, I feel like on the side of prosecution you have more power to bring true justice to the situation (as close as possible, of course) through prosecutorial discretion.

"Prosecutorial discretion" is less discretionary than you think. District Attorneys remain popular based on their conviction rate, and that's especially true in places where they're elected (which is a lot of places). On top of that, if they dropped charges against someone and they hurt someone else, that comes back on the DA's office in a really bad way, so that combined with their enforcement mentality leads to erring on the side of prosecution. If evidence is really weak or contradictory, they won't drop the charges, they'll just push for a plea on a lesser charge to get the conviction.

I'm not saying they never drop charges, I'm just saying they're biased the other way, and that they're supposed to be. Their job is to get more convictions, their success is measured by conviction rate, so they're going to try to convict as much as they can.

Prosecutors thus do not use that kind of power and discretion in a "true justice" way, which is just one more reason the PDs have to be so gung-ho about defending everything. And working as a prosecutor, you don't get to make those calls in most cases, you'd need the DA's permission to drop a case, and he won't do that because it'll hurt his conviction rate and potentially put a guilty man out on the street and create a political nightmare for him. He'll tell you to offer a misdemeanor with a short sentence instead.

And many defendants will take that to avoid the risk of a felony conviction, even if they didn't do it. After all, six months in jail and then getting free is a lot better than six months in jail awaiting trial and then five to ten years serving your sentence. Congratulations, you just convinced someone completely innocent of the charges to accept a conviction because it would get them out of jail faster. Good job.

[vanwinkle]

A true story, to illustrate the point:

The Supreme Court has dictated that for due process reasons, if you are arrested and detained, you must be brought before a judge for a probable cause hearing within a reasonable amount of time to determine whether the police had probable cause to detain you. The Court basically said that more than 48 hours without a probable cause hearing is an unacceptable deprivation of liberty without due process, and most jurisdictions give 48 hours to do this.

The way this is implemented in the NYC system is that you must be arraigned within 48 hours. In order to detain you beyond that, either exigent circumstances must exist or they must press charges against you by that time. Those charges must be supported with probable cause, and if they have probable cause at that point then they can continue detaining you. Otherwise, you must be let go. Even if they do press charges, the judge may offer you bail at that time. The system has evolved enough (largely through the long-term efforts of the Legal Aid Society and other defense advocates) that it's pretty fair overall.

But that's a good system, which has evolved to be relatively fair because of the strong checks and balances on both sides. Here's a bad one.

In New Orleans, the rule is that you're supposed to go before a court within 72 hours. (This is possibly a violation of the Supreme Court precedent and I think they're still arguing over this.) You're supposed to be brought to the court within 72 hours, at which point they make a determination on probable cause for the arrest alone. If the judge decides the police had probable cause to arrest you, then they're allowed to keep detaining you. The judge may set bail, but bail amounts are often set excessively high on purpose (I saw a judge issue bail in the amount of three million dollars).

Here's the kicker: At that time, they do not have to decide whether to charge you, and until you're charged, the right to a public defender does not kick in. If someone arrested requests a public defender and can qualify for it, then they can be assigned one at that time, but the judges aren't very friendly to that either. I saw a judge deny public defense counsel to a 17-year-old client being sent back to prison because, while his mother had filled out all the appropriate paperwork demonstrating they were below the income threshold, she had drawn lines through certain fields to indicate they didn't apply to her instead of writing in "0" to indicate no income. The judge claimed the paperwork was improper and therefore invalid, and thus there was no proof that they qualified for a public defender, and also refused to let her fix the forms right there.

By the way, this was a magistrate judge without a law degree, and that's common for arraignment-type proceedings. But she also ordered him a trial date that she would preside over. As a magistrate judge, she presided over trials, which regardless of any federal due process issues is unconstitutional under the Louisiana state constitution. While I was there last year, defense advocates finally reached a "settlement" with the city where they agreed to "phase out" these magistrate judges and replace them with appointed judges.

Here's the kicker: While they have 72 hours to determine whether there was probable cause to arrest and detain you, if that existed then they have 45 days to continue detaining you if you're suspected of a misdemeanor, and 60 days if you're suspected of a felony. They can hold you for 45 or 60 days and then let you go, without ever having had a trial or been charged of any crime. Probable cause can be based on whatever the cop witnessed you doing, which means it's the cop's word against yours, and the judges will always believe the cop.

Effectively, if you piss off a cop in New Orleans, he has the power to put you in jail for 45 days and he knows it and you know it. They call it "cop law" down there. Look at a cop the wrong way, get 45 days. That sounds a little extreme, but sometimes it really happens.

When I was there, things had actually gotten drastically better. Up until Katrina hit in 2005, the public defenders weren't assigned to clients but to courtrooms, and typically didn't meet their clients until they were brought in for the first pre-trial proceeding after they were charged. Since most misdemeanors have broad discretion and can be sentenced to as little as 30 days, the prosecutors would frequently offer to agree to time served if the defendant would plead guilty before going to trial.

So you had public defenders literally meeting their clients for the first time after they'd been in jail for a month and a half, and greeting them with, "Hi, my name is [X} and I'm your court-appointed public defender. How do you feel about pleading guilty and going home today?"

The system is changing so that people can get assigned public defenders at that 72-hour hearing, but it's not a perfect system. First of all, like I mentioned, the judges love to refuse to appoint a public defender to a client, and since proof of qualifications is required to have one, it creates a hard burden just to get access to counsel in the first place. Second, sometimes the sheriff's department will just keep detaining people and not bring them before a judge within 72 hours, and since the public defenders are not given any kind of notice of who's arrested and when, it's hard to know whether someone's rights were violated.

They would occasionally get their hands on lists of people detained by the sheriff's department. One of my jobs while I was volunteering there was to scour those lists for people who had been detained at least 7 days and had not had a probable cause hearing. In the two days I did that kind of searching I found multiple people in the system who met that definition.

The good news is that they can then compel the sheriff's department to produce that person, and failure to produce them for a hearing within 72 hours gets automatic release as a remedy. So they do get out faster than most people in their circumstances... as long as the public defender can find out about them and argue for their release.

Oh, and they have banned cell phones or cameras from the courthouse and the detention centers, to prevent the public defenders from taking pictures of their clients to document the bruises and cuts they often end up with while in sheriff's department custody. I had to walk back to the public defender's office one day to drop my phone off there since I forgot it in my pocket. They won't let you just turn it off, you can't have it in the building. And yet, one day during trial, a judge stopped the proceedings because his cell phone started ringing and he said he had to answer it...

One of the public defenders there showed me pictures he had taken with his cell phone, before cell phones were banned. They were not pleasant pictures.

Other than the "back before 2005" thing I described, which I heard described to me from public defenders who worked there at the time, everything I've described I've witnessed personally. And that's why I'm on the public defense side now.

[keg411]

Cops also screw up. A lot more than you would think.

[romothesavior]

Cops also screw up. A lot more than you would think.

Without a doubt. But far, far more often than not, the person being defended is guilty, especially at a PD's office.

I'm sure we all know some PI-crazed folks at our schools who couldn't stand the thought of being a "corporate pawn" at some big firm, defending multi-billion dollar industries against lawsuits by "the little guy." Well, I feel similarly about PDs offices and defense firms.. I couldn't stand the thought of representing some scumbag rapist and trying to get them off the hook.

I'm not saying criminals don't deserve representation, and I don't have any negative feelings towards PDs and defense lawyers. I am very glad that we have people to do these jobs and I believe that having an adversarial system where both sides have competent, vigorous lawyers is the best system. I'm just saying it is not for me.

[vanwinkle]

I'm just saying it is not for me.

Just to be clear, in case I've been giving the wrong impression, I have no problem with people who say this. I'm pretty strongly pro-PD at this point for reasons already given, but I'm not trying to tell everyone they should go become PDs. If you're not into it, then you shouldn't do it. In fact, if you're not strongly into it, I'd loudly advocate that you don't try to do it, because you're likely to not give the best possible defense to your clients and to burn out and quit after a while, and be miserable the whole time. That's not good for anyone, it's not good for you, for the clients, or for the justice system.

The only reason I was responding was to rebut specific statements that were made about how the justice system worked. I'm not trying to convince anybody to go be a public defender, just to put the info out there so people can understand more honestly why it would, or wouldn't, be right for them.

[romothesavior]

I'm just saying it is not for me.

Just to be clear, in case I've been giving the wrong impression

Oh no, not at all VW. I knew what you meant, and I'll be honest, I only skimmed the really long posts of the last page or so.

And I agree with you... you shouldn't try to force it either way. While I do think a lot of good attorneys have worked both sides, I also think there is definitely a concern that a person could "end up on the wrong side" and wind up disappointed and burnt out after a while. Being a PD or prosecutor requires a lot of passion for what you do, and both the community and the clients deserve that passionate advocacy.

[XxSpyKEx]

I have worked on these difficult cases, and I sleep very well at night. In fact, I felt good about helping people when they needed help the most.

This reminds me of this story this dude at the PD's office talked about during orientation. He was representing some guy who was charged with a couple murders (and if I recall correctly he raped one of the victims as well, and he had prior murders and other violent offenses on his record). The court wasn't going to allow him to post bond (or maybe it was just a really high number). The attorney said he got the bond down to a reasonable amount where the guy was able to post it and then went out and murdered a family that very night. The attorney said he slept great that next night after finding out about that.

On the one hand, I can see where you're coming from. On the other hand, though, you know NOTHING about this case. It's entirely possible (indeed, our system is at least in theory built around the idea that until conviction the guy is) that the guy is innocent.

lol, most likely not though. I think the PD's office I was at said that around 99% of the defendants are guilty (and that's was "believer" talking, so the number is probably higher than that in all reality)... If you work at a PD's office, you'll notice that the defendants almost always take a plea just because there is literally no argument the other way with all the evidence against them. Watching defense arguments where the defendant didn't want to take the plea is often pretty brutal just because it's so hard for the attorney to come up with good arguments the other way after the prosecutor starts putting on the pile of evidence going against the defendants. All the cases aren't like this, but I was say the vast majority are (which is why the defendants are ussually happy to take a plea to a lesser crime).

and chances are i'd have an interesting interview perspective going for prosecutors' jobs for the summer after.

Yeah, one that (in some DA's offices) will immediately disqualify you.

Of course it varies amongst counties, but a lot of prosecutor's offices see a huge red flag when they see a student with recent criminal defense experience. One of the things they're looking for is commitment to prosecution, above both defense work and firm work. These jobs are hella competitive in this economy. I would be wary of doing anything defense-oriented if I was serious about working in a DA's office.

That's interesting. I have actually heard otherwise. I heard that PD offices won't want you if you have been on the other side but that vice versa that is not the case.

That's what I have heard as well.

If you win your case as a defense attorney, you have either (1) prevented an innocent person from going to jail for a crime they did not commit; or (2) helped a guilty person escape punishment for their crime.

Actually, it's not like this. Most cases don't go to trial -- 95% of them don't. It's typically more or less about getting your client the best deal possible given the circumstances.

I think I could be a defense attorney in a less adversarial, winner takes all type system. I would also feel more comfortable as a prosecutor there as well, where both sides try to bring the fairest case to the judge and all parties involved, prosecution and defense, try to get to the real facts of what happened and both sides to try to agree on what would be the best sentence/punishment for the crime at hand, taking society's needs into account the entire time.

However, I could not go completely gung-ho when I just knew that my talent and drive would be used at times to do what I think is morally wrong for the situation. I understand that this is the system we have and that there is a vital role for PD's, I just could not represent some clients to the full extent guaranteed by the Constitution as it stands. Note that another reason I like prosecution as a possible career more than defense is because of prosecutorial discretion. Sure, there are pressures to convict and throw the book at suspects. However, you have a lot more power in righting wrongs such as lowering harsh charges through plea agreements, etc. than do defense attorneys.

Edit: this is such a heated debate topic I'm surprised that more people are not posting in this thread.

In all reality both sides are kind of douchebags… the prosecutors are probably worse. The prosecutors always overcharge the defendants given the facts and circumstances that are known (e.g. always charging aggravated assault with a deadly weapon, even in instances where the defendant did something like dump water on the “victim”). Then the public defender wants to negotiate it down, and at the end the plea ends up being right around what the charges actually should have been. Although, sentencing is a bit ridiculous in the US generally – we have one of the highest rates of incarnation in the country.