« Interesting report on review of capital costs in New Hampshire | Main | "Ohio inmate to get 1-drug, slower, execution" »

December 6, 2009

Could commentor Supremacy Claus really be . . . Ralph Nader?

I am pretty sure the answer to the question in the title of this post is "no," though this new piece in The Connecticut Law Tribune perhaps suggests that a (too) frequent commentor on this blog and famed activist Ralph Nader have more views in common than one might readily assume.  The article is headlined "Ralph Nader Calls Out Legal Profession," and here is how it begins:

A University of Connecticut School of Law moot courtroom was a fitting setting last month, as consumer activist, politician and lawyer Ralph Nader sought to put the legal profession on trial.

Warrantless eavesdropping, the war in Iraq, corporate wrongdoing -- Nader is a man with quite a few bones to pick. But his chief complaint was that America's lawyers have done too little to stand in the way of government policies he labeled unconstitutional. He noted the strong reaction of Pakistan's lawyers last year when that country's leader threatened the integrity of its justice system. "Did you see our beloved profession up in arms here?" Nader asked. "Lawyers in Pakistan were marching. Where were our lawyers?"

The UConn law school chapters of the ACLU and the National Lawyers Guild brought Nader, a Winsted native, to Hartford. The event drew roughly 100 law students, as Nader urged future jurists to observe a duty beyond zealous representation of their clients. "A lawyer's role is to look out for the administration of justice," he said.

Nader placed much of the blame on America's system of legal education, which he said has spent too much time teaching substantive law and too little encouraging students to think critically about why the law is what it is.

This last sentiment which I have highlighted seems quite similar to a key theme in many of Supremacy Claus's (too) frequent rants.

December 6, 2009 at 12:44 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20120a71d37b9970b

Listed below are links to weblogs that reference Could commentor Supremacy Claus really be . . . Ralph Nader?:

Comments

Ralph is right! It's like he's got a shiny red nose and is leading us through the darkness!

S.C.

Posted by: S. Claus | Dec 6, 2009 12:54:13 PM

While reading your post about the themes of Ralph Nader's lecture at Univ. of Conn. Law School, I couldn't help but think of the Supreme Court's "Burger" opinion circa 1930s), where the Court reminded prosecutors that their job is not merely to secure convictions ("scalps on the wall"), but to see that justice is done. Every lawyer in America (not just prosecutors and criminal defense lawyers) should keep framed copy of that portion of the "Burger" opinion on their office walls. Too many lawyers place their emphasis on "winning at all costs", and lose sight of what their true role is in our society.

Posted by: Jim Gormley | Dec 6, 2009 1:40:04 PM

Actually no.

Let's say that you are facing charges for something horrendous. After you family scrapes together enough bail money to get you out, you walk into your lawyer's office. He tells you that while your might stand a good chance at trial, society would be far better served if you were to plead guilty. He points out that you have a pretty bad record for helping society (while you technically did graduate college, he says that you blew off classes and watched football). You point out that all the witnesses lack college educations, and have multiple convictions for forgery and incest. He explains this doesn't matter, because society would be better served by having a sport-watching idiot like you in jail. He takes your money and tells you that must plead guilty.

Or how about if social workers take your kids? Do you really want your lawyer telling you that you should just admit that everything they say is true?

Now, I think we all agree that lawyers for the government owe somewhat different duties, but Nader's words can easily be perverted to be advocating for an end to aggressive representation of people faced with criminal (or quasi-criminal) charges.

And really, critiquing the law is nothing new in law school. Just about every law student has been exposed to it. That said, you don't properly advocate for your clients by saying "law sucks." You figure out why your client's position fits within the existing framework. From time to time there is an opportunity to implement a critique of the American legal system, but for most clients it rarely happens.

Posted by: S.cotus | Dec 6, 2009 2:32:03 PM

Doug - the guy may comment too much, and often in too vicious a tone, but your reference to him in this post disregards his most charming feature -- a Marxian (not Marxist) sense of humor. It's "Supremacy Claus," not "Supremacy Clause." Hadn't you noticed? His reference -- and a very witty reference it is, indeed -- is to the punch line of the classic contract negotiation scene between Groucho (as a lawyer) and Chico (playing a singer's agent) in "A Night at the Opera" (1935).

Posted by: Peter G | Dec 6, 2009 3:03:46 PM

Thanks S.cotus for that dose of realism. I agree that there are definite problems with our system of legal education and to that extant I would agree with both Ralph and SC. I think I would disagree with them however as to what those specific problems are. Frankly, I think that "thinking critically about why the law is what it is" is low on my list.

I also agree that the lawyers first duty is to do what's in the best interest of his or her specific client. A lawyer's first duty is not to the legal profession or to the country as a whole. That doesn't mean the lawyer shouldn't care about those things, just that it is not his or her first duty.

Posted by: Daniel | Dec 6, 2009 3:06:02 PM

Peter G., you are right, of course, and I have now fixed the post's various typos... Thanks.

Posted by: Doug B. | Dec 6, 2009 3:33:58 PM

The Pakitasni lawyers took to the streets when the Pakistani SC was sacked. The rent seeking theory explains that behavior.

I guarantee Ralph Nader is not the Supremacy. Mr. Nader is on the cutting edge of the rent seeking aims of the criminal cult enterprise, and an innovative creator of new causes of action. These are pretexts to loot and destroy all productive entities and to take down our lawyer besieged nation. In part, he is to blame for the destruction of GM.

I see the interest of the client as often congruent with a change in the law. There is no contradiction in taking the parsing, Scholasticist, Frenchie, lawyer gotcha, hyperproceduralist approach advocated by S.cotus. He does that because it generates hours. It has no validity. Appellate judges are just as likely to respond to the assertion of a few facts supporting a new policy position as to a lawyer gotcha that the contract had the wrong font and thus is voidable. The latter nitpicking may even anger and alienate them.

Parsing (a method from Scholasticism and church) can still be combined with attacks on the law itself. John Alexander, Zenger's first lawyer, took a disbarment after attacking the judges. The judges asked the jury to completely ignore whatever the second lawyer, Andrew Hamilton, said. The jury did the opposite. Now that was good lawyering. Rhyming and buffoonery on the Dream Team got OJ off. From a lawyer perspective, who cares about the subsequent uproar.

As to me, I am not in that category at all. I love the law. I love the lawyer, every single one. I happen to be an owner of the law. My criticism is loving criticism like that of a parent for a much beloved child making mistakes. I see the law in failure, and I am pointing out the obvious, wide, clear path to success, modernity. All substance comes from academic high school subject content, and is not hard at all.

I also love the judge. If the public is oppressed by the hierarchy, the lawyer is doubly so, and the judge triply so. How oppressive is it be impeached for having driven to the scene an accident under trial to see the physical reality for oneself? This hierarchy is unbearable. It is incompetent, greedy, and oppressive. I hope that the lawyer will lose the fear of these cult criminals and support its removal. They can do a far better job than ham handed federal marshals and military police, after a nuclear attack by terrorists enabled by this incompetent hierarchy.

Posted by: Supremacy Claus | Dec 6, 2009 3:34:33 PM

As an intergrative studies major I have the chance to look at a bigger picture of law, criminal justice, and yes education as well. Surely I cannot be alone in realizing that the real question before us is simply one of an education system that does not meet our complex society's needs.
Mr. Nader's passionate point is well taken and yet is lacking in it's narrow focus. Holistic thinking is rapidly rising and must become the unfettered voice of human endeavoir if we are to survive our own shortsightedness.


Posted by: Roy Jimenez | Dec 6, 2009 3:42:51 PM

Roy: The rule of law is an essential utility product. Turn it off and you have Fallujah. Everyone has to spend full time on personal security and survival, and can accomplish nothing else.

Imagine an electricity service that went on 2 hours a day for the rich, and 2 minutes a day for the poor. In 20% of the times it went on, it surged too much and burned out your appliances. That is the law in failure today. The criminal law allows millions of crimes. Then, when it gets someone in its grasp, it sends innocent people to prison about 20% of the time. What should be done with the responsible officials of such an utility service?

It gets worse. There was an uproar about the crime rate. The law utility officials improved the service by 40%, a tremendous lawyer achievement in dropping the crime rate with the Sentencing Guidelines. That would not be tolerated by the lawyer hierarchy, and they made sentencing guidelines discretionary.

What should be done with such utility officials?

Posted by: Supremacy Claus | Dec 6, 2009 4:00:08 PM

While not best qualified to comment on the basis of Nader's criticism of "America's system of legal education", I would certainly agree that a fundamental requirement of such should be the critical assessment of the law, and the relevance it has at any moment in time to the lives of the citizens it is designed to benefit, and in the manner in which it balances oppression and help for transgressors. That would be no more nor less an essential component, in context, of any higher education course. Of course, the American Bar Association attempts to fulfill that role outside of education, and many in the legal profession support that body. But it is the sum of its parts - to be effective it needs the input and active support of its members. However, while the infrastructure of a critical body exists in the form of the ABA, because so much of the legal profession owes its career structure to political patronage, that input and support is not as substantive or effective as it should be. Having said that, the ABA remains, against the odds,an especially important pressure group. Nader recognizes I think that the scope of the law gets wider every day, while bad law is seldom subject to reassessment and change. If that is his view, I would concur.
I would add that I think Daniel and S.C. are being too narrow in their definition of "lawyer". If the client of the lawyer (eg. prosecutor/judge) is the State, then he/she certainly has a wider duty to serve Justice first. Only by doing so are they truly serving their client. And that brings us nicely back to Jim's point, which is well made.

Posted by: peter | Dec 6, 2009 4:05:43 PM

Let me be clear that I fully support the ethical obligations of criminal defense lawyers to fully advocate their clients' positions to the fullest extent possible within legal constraints. Although some of you may judge my comment as sour grapes, I am one of the few lawyers (U.Va. Law School '87) commenting on this blog who has ever been thru a Federal criminal trial as a defendant and served 8 years in prison. See, "United States v. Bollin, Gormley & Tietjen", 264 F.3d 291 (4th Cir.2001). If my trial counsel, Buddy Parker, of Atlanta had more zealously advocated my case, I should have been acquitted and not disbarred. Mr. Parker made many mistakes in my case. First, he refused to prepare me to testify, as I requested, and stated that he would walk out of the Courtroom if I attempted to testify. He failed to advise me that the decision whether to testify was mine alone, and not something he could decide, as a matter of trial strategy. The indictment chrged that I had facilitated investments "under the guise of legal work". Mr. Parker told the jury in opening argument that my defense was that I was simply practicing law within legal and ethical boundaries, so I had no criminal intent. My clients were simply con men who duped me and used my legal services to further their criminal enterprise. But Mr. Parker failed to cite any authorities in support of "just practicing law" theory of defense jury instructions he submitted to the Court, so it is not a big surprise that the trial Judge refused to give them. Mr. Parker, however, failed to object, to perfect the record for appeal. Mr. Parker failed to locate and cite to the Court "United States v. Lieberman", 106 F.3d 393 (Table), 1997 U.S. App. LEXIS 1057 (4th Cir.1997), where the Court had reversed the convictions of an attorney for conspiracy to commit money laundering, of which I was convicted. See also, "U.S. v. Casperson, 773 F.2d 216, 223-225 (8th Cir.1985); "U.S. v. Beckner", 134 F.3d 714, 718-721 (5th Cir.1998); "Schatz v. Rosenberg", 943 F.2d 485, 489-497 (4th Cir.1991). In Mr. Parker's closing argument to the jury, Mr. Parker called me "stupid" and "a jerk" 16 times! I was convicted on all counts! My convictions and sentence were affirmed on direct appeal. After I initially prepared and filed my 2255 Habeas Corpus Motion pro se, the D.C. firm Arnold & Porter came in to represent me on 2255 Motion. Prof. Stephn A. Saltzburg, a renowned law professor and scholar (and 2008 Chair of the ABA Committe on Criminal Justice), provided his opinion that because the jury was not instructed on legal ethics and the duties and obligations of attorneys to their clients, the jury may have convicted me for doing what the law actually required me to do. Nevertheless, my 2255 was denied without and evidenciary hearing and that was affirmed by the Fourth Circuit. Certiorari was denied by the Supreme Court. Thus, my only remaining legal avenue for relief is to seek a Presidential Pardon.
Oh, and I paid Mr. Parker $100,000. While he had 19 years experience as an Federal prosecutor and 3 years experience as a defense lawyer, Mr. Parker never advised me that I would be the first defendant he had ever taken to trial! So, I know better than anyone what happens when counel does not advocate properly for his client.

Posted by: Jim Gormley | Dec 6, 2009 4:34:36 PM

Actually peter my own opinion could be better understand as exactly the opposite of that of Mr. Jimenez. I agree with him regarding the need for integrative thinking but I think the proper unit of analysis is not society but the individual. The complexity of modern society is the problem; I don't think you solve that problem by creating more complexity which is where holistic thinking (as opposed to integrative thinking) has lead us. We don't need bigger thoughts about man we need bigger thoughts about men.

Posted by: Daniel | Dec 6, 2009 4:38:31 PM

Daniel: Aren't criminals, not the falsely convicted ones, the career ones, drearily all alike? They do not even specialize, as they do in the movies. Selfish, fearless, impulsive, presentist, cannot be deterred. So a simple formula would work, e.g. 123D. Even the sentencing guidelines were too individualistic and complicated. And isn't incapacitation the sole mature benefit of the criminal law? Is it not the sole one of the five lawyer goals worth the labor represented by collected taxes?

Posted by: Supremacy Claus | Dec 6, 2009 4:54:16 PM

Daniel - I like your concluding sentence - but the reality of American law is that it is currently practiced as a blunt instrument, leading to the world's highest rates of incarceration and execution. That is not a problem that will be effectively addressed without finding holistic solutions to 1. the process of lawmaking, which is often politically motivated at the expense of considered Justice; 2. the gross overuse of criminalization to control deviant behavior; and 3. the tunnel vision of prosecutors and judges in applying current law. Local improvements in practice can be made by focusing on the individual, but wholesale change is needed to reverse policies that have led to over 1% of the population being incarcerated, often for non-violent offenses and with no evidence of continuing threat.

Posted by: peter | Dec 6, 2009 6:28:28 PM

"Nader urged future jurists to observe a duty beyond zealous representation of their clients."

I wonder if anyone asked him if he meant that defense counsel should not bend every effort to put back on the street people they know, or upon reasonable inquiry would know, are both guilty and dangerous.

Posted by: Bill Otis | Dec 6, 2009 8:41:59 PM

Bill, This was precisely the point I was making. However, obviously, unlike you, I believe that even scum without a college education and without a summer associate position are entitled to vigorous representation and a jury of uneducated scum (rather than true Americans) will judge them.

At some level, we need to ask ourself whether juries corrupt the American system of justice. Juries are made up of people that have passed no tests (unless they are ex foreigners) and they are made up of people that likely never were AUSAs. So, will you join with me in fighting for the elimination of that corrupt institution, so that we can eliminate the profession of criminal defense?

Posted by: S.cotus | Dec 6, 2009 11:43:05 PM

bill: "I wonder if anyone asked him if he meant that defense counsel should not bend every effort to put back on the street people they know, or upon reasonable inquiry would know, are both guilty and dangerous."

me: obviously, you've never read anything that Nader has ever written or listened to him!

Nader is primarily referring to corporate counsel and how they have to act not only as legal advisors but also as the conscious of their corporate clients. And he's right - its smart business for a civil/business lawyer needs to know when to tell a client "no."

Posted by: virginia | Dec 7, 2009 10:01:05 AM

Bill: I'm curious. What do you consider to be "bend[ing]every effort to put back on the street people they know, or upon reasonable inquiry would know, are both guilty and dangerous?" Let's assume a defense lawyer who follows every rule of ethics. What is an example of something he or she should not do in representing his/her client?

Please try not to get defensive; I am truly curious as to your views here.

Posted by: me again | Dec 7, 2009 12:22:25 PM

"Nader urged future jurists to observe a duty beyond zealous representation of their clients."

I wonder if anyone asked him if he meant that prosecutors should not bend every effort to put or keep people in prison without regard to their guilt or innocence.

Posted by: - | Dec 7, 2009 3:14:47 PM

Nader is absolutely right about law school. the most useful and generally interesting classes in law school are the more analytical classes. the most useful things one learns in law school are to always read the actual text first, how to do legal research, and how to dissect statutes and prior precedents to craft your legal argument.

I had a professor who took the position that learning substantive law was for bar review and for your career and that in law school you should be thinking about the law. while I didn't realize it as a young, bratty 1L, as a not much older and just as bratty attorney I now realize was easily the most useful class I had in law school

Posted by: virginia | Dec 7, 2009 5:57:04 PM

Ginny --

"Nader is primarily referring to corporate counsel and how they have to act not only as legal advisors but also as the consci[ence] of their corporate clients. And he's right - its smart business for a civil/business lawyer needs to know when to tell a client 'no.'"

One might hope it's something beyond "smart business" for a lawyer to act as the conscience of the client. One might hope, for example, that leading a clean and honest life requires it. And I agree that civil/business lawyers should bear this in mind. The question is why criminal lawyers get an exemption from basic moral rules that everyone else does, or should, take for granted.

Posted by: Bill Otis | Dec 7, 2009 6:18:50 PM

me again --

"Let's assume a defense lawyer who follows every rule of ethics. What is an example of something he or she should not do in representing his/her client? Please try not to get defensive; I am truly curious as to your views here."

That I doubt. It's more likely you're out to support the defense lawyer's supposed prerogative to bamboozle the jury into an erroneous acquittal, and then take chest-thumping pride (not to mention the fee) for putting some dangerous character back on the street.

But since you asked for an example of something that's within the rules of ethics but that defense counsel shouldn't do, I'll humor you. (Note that I am not, at this point, taking on the lax rules of ethics themselves, they having been written by what one could most charitably call a self-interested group, namely, committees of lawyers! Imagine that!)

Here's your example: Mr. Jones robbed the bank of a sackfull of dough, using a pistol, and employs defense counsel to represent him. In his preparation for trial, he tells counsel that, in fact, he did it (he needed the money to pay off his coke dealer, who otherwise had threatened to shoot him because he hadn't paid for his last fix).

One of the government's important witnesses is Mrs. Smith, a slightly slow 75 year-old lady with glasses. Mrs. Smith testifies that she saw Jones running from the bank with a sack full of loot in one hand and a pistol in the other. Defense counsel knows this is true (his client told him), but starts a rapid-fire cross examination of Mrs. Smith about whether she was sure she was wearing her glasses, whether she's sure it was a pistol and not a cell phone, whether she was really close enough to be certain of her identification (she was across the street), whether in fact she needs home care in light of her forgetfulness, etc., etc. By the time this all finishes 45 minutes later, the poor old woman looks and sounds confused, hardly someone the jury could put a lot of trust in. This is exactly what counsel wanted.

Only one thing: Her testimony was truthful, and he knows it.

None of what I have just described is a violation of the rules of ethics. But it is sleazy, low-down, deceptive and at base dishonest.

Posted by: Bill Otis | Dec 7, 2009 6:50:08 PM

Dec 7, 2009 3:14:47 PM --

"I wonder if anyone asked [Nader] if he meant that prosecutors should not bend every effort to put or keep people in prison without regard to their guilt or innocence."

That's it, Mr........well, whoever you are (understandably you don't say). Prosecutors are ALL THE TIME trying to "put or keep people in prison" regardless of their innocence. Indeed, as the tenor of your post slyly suggests, THAT'S ABOUT ALL THEY DO!!! Why they do this so regularly is something of a mystery, but we KNOW they do because, well, because...........Mother Jones says so!

Even worse, the cops help them! So wouldn't you say that Maurice Clemmons achieved rough justice by sending a message to these handmaidens of prosecutorial conniving?

Yes, well, moving right along, let me ask you the question to which my earlier post referred: Do you think it is the morally upright thing to do to bend every effort to put back on the street a person you know, or upon reasonable inquiry would know, is both guilty and dangerous?

N.B. This question does not refer to the "ethics rules" lawyers write (and police) for themselves. It does not even refer to law per se. It refers to what is morally upright -- you know, something you'd teach to a kid who hasn't yet become acquainted with the slick excuses adults invent.

Posted by: Bill Otis | Dec 7, 2009 7:12:49 PM

"Yes, well, moving right along, let me ask you the question to which my earlier post referred: Do you think it is the morally upright thing to do to bend every effort to put back on the street a person you know, or upon reasonable inquiry would know, is both guilty and dangerous?"

You know, this is why people say I should be a defense attorney. Because my honest answer to this question is, "yes". The burden of proof is on the government and the people they have to prove it to is the jury. What the defense attorney knows or doesn't know is irrelevant to that inquiry. The defense attorney has no duty to the help the government make its case. My opinion is that if the defense attorney has any moral qualm on that issue he or she shouldn't be a defense attorney.

Posted by: Daniel | Dec 7, 2009 7:33:02 PM

Daniel --

You missed the last two sentences of my post, which were: "This question does not refer to the "ethics rules" lawyers write (and police) for themselves. It does not even refer to law per se. It refers to what is morally upright -- you know, something you'd teach to a kid who hasn't yet become acquainted with the slick excuses adults invent."

Would you teach your kid that it's the morally upright thing to do to help a guilty and dangerous person get away with it?

Posted by: Bill Otis | Dec 7, 2009 8:03:54 PM

The problem I have with your qualification Bill is that it's irrelevant. I mean that. It's simply irrelevant. I agree with Justice Holmes when he wrote, "A man's heart can be as bad as he wants so long as he obeys the law." The moral law (and I do believe there is a moral law) has no relevance to the civil law in our society. Now I recognize that some people whould go "oh ho, that's the problem right there" but I'm not one of them.

What I would teach my child is that the moral guilt of another is a question that will be answered at God's throne and is none of his or her business. The question of legal guilt is a question that will be answered by a jury or sometimes a judge.

Posted by: Daniel | Dec 7, 2009 9:53:03 PM

Daniel --

"What I would teach my child is that the moral guilt of another is a question that will be answered at God's throne and is none of his or her business."

So it would be OK with you, from a moral standpoint, if your kid hung out with a violent drug gang, on the theory that the moral guilt of the gang members is "none of his business?"

Consider what would happen if your kid lied to you and you grounded him as punishment. Suppose he said to you, "My moral guilt is a question that will be answered at God's throne and is none of your business." Would you say, OK, sure, lie to me as much as you like, since, not being God, it's none of my business?

I really, really doubt that. I would tell my kid that I EXPECT him to make judgments about the truthfulness and good faith of the people he's considering as friends, and to act accordingly. And I would enforce it, as would any parent having his child's future foremost in his thoughts.

Posted by: Bill Otis | Dec 7, 2009 10:51:14 PM

The problem Bill is that I can't respond to the question because I'd never analyze the situation from a moral point of view to begin with. You want me to accept that the proper way to decide the issue is on a moral basis and I won't do that. I'm not gonna play that game. What you either can't or don't want to accept is that there are ways of responding to the situations you describe that are amoral.

Posted by: Daniel | Dec 8, 2009 2:13:41 AM

bill: "The question is why criminal lawyers get an exemption from basic moral rules that everyone else does, or should, take for granted."

me: do you actually believe that to be the case? the answer to your questions is pretty basic - the English system of law which the U.S. adopted puts the burden of proof on the prosecution. it is unethical and frankly immoral for a defense attorney to "help" the prosecution make the case even if the defense counsel knows that the defendant is guilty. while you see everything through a moral lens, you seem to be missing an important part of morality - which is that it is the lawyer's job to honestly advice their client. maybe the best advice to give a client is to advice the client to plead guilty.

the example you use is telling becasue it is rather unrealistic. if the defendant told his attorney that he is guilty, chances are the defendant is going to seek a deal or make a guilty plea. if the defendant doesn't take a plea, the attorneys only job is to cross examine the witnesses to assure that the defenant receives a fair trial. i don't see anything immoral at all about a defendant seeking truthful information about the witness testimony - mistaken witness identity is one of the leading causes of false conviction. if the prosecution is basing their case solely on the testimony of one witness, it is not the defense's responsibility to let the prosecution off the hook for building a lousy case.

while you constantly spout morality, what worries me is that your entire consept of morality is to have criminal defense attoneys let the proscution walk all over their clients. maybe you would prefer a system where it is the burden of the defendant to prove theri innocense, but that is not the syswtem we have.

yes, legal ethics and normal ethics are not the same, but there is not nearly the conflict that you are making it out to be. it serves everyone's interest to have a fair trial. maybe you do not care if thousands of innocent people are falsely convicted and imprisoned or even executed - but on any rational scale of morality, punishing the innocent is much worse than letting the guilty go. while you constnatly question others morality, you really should be looking at their own - don't forget what they say about people who live in glass houses.

now on the civil side, one does have a moral choice and that is a totally different consideration. the prosecution also has a choice on whether to proceed due to their ability to decide to forgo prosecution or to decide what charges to make. realistically, defense attorneys don't have that choice - some do and only work retained cases, but they are the exception. and in every case, the defense attorney's job and I would say moral obligation is to keep the system honest. why, because morally we should strive to only punish the truly guilty. in your example, the defense counsel did absolutely nothing immoral - they did not seek perjury, they merely asked for the full truth. I can see why as a prosecutor you'd prefer to have a silent defense attorney who merely sits there looking pretty as their client allows teh government to walk all over their rights.

Posted by: virginia | Dec 8, 2009 9:47:54 AM

Hi Bill. This thread is getting long, I know, but I wanted to say thanks for the substantive response/example I requested. As you often say, this kind of concrete discussion is usually more valuable than the "talking points" debates that many (yes, you included) engage in here.

I'm still thinking about your example but meanwhile am wondering if the same would go for a prosecutor. If the prosecutor knows (or upon reasonable inquiry would know)a defense witness is telling the truth, but takes advantage of the defense witness's poor eyesight, "slowness," etc., is it just as bad as when the defense lawyer does it? (By the way, this isn't strictly hypothetical. I have seen this happen many times in my 20-plus years as a public defender. I can provide a concrete example, if you like, but I'm trying not to make this post even longer than it is already.)

If you agree that it is just as bad, I'm going to continue thinking about your example - and perhaps respond further in a later thread. If you think that it's not the same thing (or that it doesn't happen), I probably won't bother. The "sauce for the goose but not for the gander" way of thinking never appeals to me. But assuming the rule (moral, ethical, or whatever you want to call it) applies to both sides, it's an interesting question.

Posted by: me again | Dec 8, 2009 12:01:05 PM

me again --

"Hi Bill. This thread is getting long, I know, but I wanted to say thanks for the substantive response/example I requested."

You're welcome.

"If the prosecutor knows (or upon reasonable inquiry would know) a defense witness is telling the truth, but takes advantage of the defense witness's poor eyesight, 'slowness,' etc., is it just as bad as when the defense lawyer does it?"

You bet.

To me, it is unacceptable for an officer of the court, ANY officer of the court, to attempt to mislead the tribunal about the substantive truth. Not one time in my career as a prosecutor did I do it. Never. I know you have only my word for it, but that's the best I can do, other than to invite you to read any you care to of the 100 or so cases I argued in the federal courts of appeals. Since I use my real name here, they're not hard to find.

To me, the test for my professional life was simple: Would I want to go home and tell my kids that I had done something that day that I had taught them never to do? If I had tried to mislead people -- the judge or the jury or anyone else -- the answer would have been "yes." And to me, that would have been intolerable.

The first mission of parenthood is not to provide a lot of material goods. The first mission (after assuring their physical health and safety) is to help guide your kids to develop a moral foundation so that they can take justified pride in the way they live, and so that other people will come to trust them. (Without trust, they will never forge the relationships with others they'll need to grow and flourish).

You cannot have a moral foundation, and you cannot build (or deserve) trust if you intentionally mislead people. It's softcore lying, and that is not acceptable.

One of our commenters (virginia) correctly notes that there's a difference between legal ethics and normative ethics. And that, in a nutshell, is the problem with legal ethics.

Posted by: Bill Otis | Dec 8, 2009 4:59:26 PM

Ginny --

How does a trial become fairer when the jury is misled about the most important fact in the case?

Posted by: Bill Otis | Dec 8, 2009 5:29:07 PM

Bill: Fair enough.

In my years as a PD, I have dealt with many honest and fair prosecutors. Unfortunately, I have also dealt with ones who are not. There are bad apples on both sides of the aisle.

Since you're willing to admit that a prosecutor's attempt to make the jury believe something the prosecutor knows is not true is as bad as such an attempt by a defense lawyer, I'm going to give more thought to the initial question (whether the rules of ethics should allow this and/or whether an individual's sense of morals should allow it). I'm sure the question will come up again, so rather than make this thread any longer, I'll wait to express further views in a future thread.

Posted by: me again | Dec 9, 2009 12:56:14 PM

me again --

Very good. I'll be watching for it.

Posted by: Bill Otis | Dec 9, 2009 11:47:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB