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June 4, 2010

"Assistant public defender charged in attack on prosecutor"

The title of this post is the headline of this local story from Chicago.  And though violent crime should never be taken lightly, this story seems to be amusing to some because of the participants:

A Cook County assistant public defender who represents convicted felons now has to worry about keeping himself out of jail after being accused of pushing and choking a prosecutor at the Criminal Courts Building.

Henry L. Hams, 47, of Chicago was charged late Thursday afternoon with aggravated battery and resisting arrest after a rare scuffle that sent waves of whispers and startled reactions through the building at 26th Street and California Avenue.

Hams and the prosecutor, 50, had just left a courtroom where a discussion about the routine setting of a future court date became contentious. Still upset, Hams complained to the assistant state's attorney outside the courtroom, according to a law enforcement source.

The prosecutor "apparently said, 'Too bad, that's the date the judge set,' and (Hams) just lost it and shoved (the prosecutor) against the wall," the source said. "He said something about how he was sick of being mocked." The prosecutor "was stunned and didn't do anything, and the next thing you know (Hams) had him in a headlock," the source said.

Another source who witnessed the incident said he heard a scuffle and saw Hams choking the prosecutor. "He had his hands wrapped around his throat and was just kind of riding him down the wall," the source said.

A Cook County sheriff's department sergeant and deputy rushed to intervene as Hams was alleged to have throttled the larger prosecutor. "When our deputies attempted to break it up, Hams was on top of the victim choking him with both hands around his neck," said Steve Patterson, a sheriff's department spokesman. "When one of the two deputies attempted to pull Hams off the victim, Hams continued choking the victim with one hand and attempted to resist the deputy's efforts with his other hand."...

Hams works out of the post-conviction unit for the public defender's office and the victim works out of the special litigations section for the state's attorney's office. Patterson said the two only knew each other through legal proceedings.

News of the fracas spread quickly through the hallways. Nobody wanted to talk on the record, but many expressed surprise. "That guy is like (TV character Steve) Urkel -- he's this little, quiet dude," said a veteran courthouse lawyer, chuckling. "(The victim) is going to hear about this one forever."

June 4, 2010 at 08:37 AM | Permalink

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Comments

I decline the opportunites presented by this story because it is an anomaly. The thing to worry about with criminal defense lawyers is not pugilism. It's about how they view their obligations as citizens, members of the community, and officers of the court vs. their desires to please the client regardless of the merits of the case.

Posted by: Bill Otis | Jun 4, 2010 10:58:12 AM

LOL sounds like smart ass'd DA make one crack too many and almost got his head cracked for his smart mouth!

Posted by: rodsmith | Jun 4, 2010 11:01:09 AM

"The thing to worry about with criminal defense lawyers is not pugilism. It's about how they view their obligations as citizens, members of the community, and officers of the court vs. their desires to please the client regardless of the merits of the case."

That's the thing to worry about with criminal defense lawyers, prosecutors, and every other kind of lawyer in this country.

Posted by: JC | Jun 4, 2010 11:49:23 AM

And here we have a crystallization of the bias inherent in this blog, and the minds of so many closet anarchists masquerading as legal wonks. There is nothing amusing about a member of the Court family choking another, but since the target was a prosecutor, chuckle it up! What does this story reveal: That Grabthroat P. Hairtrigger, ESQ was so angry about not being able to control the Court that he lashed out violently. Pretending to be a champion of the law, while actually manifesting intense animus toward it, must be a tough. I suggest some Yoga, a nice disbarment and maybe a cup of peppermint tea.

Posted by: USPO | Jun 4, 2010 12:00:47 PM

I don't regard my duty of loyal advocacy as simply a "desire to please my clients." My obligations as an officer of the court and citizen impose restrictions on the lawful tactics available to me to satisfy those duties. They impose requirements to report certain criminal conduct. I honor those obligations. But if you think public defenders should be able to forego legal remedies because they think their clients are bad people, then write your congressperson, or the committee that formulates disciplinary rules. The duty of zealous advocacy is no less the law than the law against assault.

But perhaps I misread you.

I don't think an assault between lawyers is funny, and don't appreciate the incident being treated as if its a natural outgrowth of any effort to restrain the power of government through lawful means. I thought USPO's were supposed to neutral agents of the judiciary. If you see advocacy for restraint in sentencing, or the use of egg-headed "wonkery" to defend a client as thinly veiled "anarchism", or a misguided effort to "control the court," you aren't fit for the job.

But perhaps I misread you.

Posted by: RW | Jun 4, 2010 12:18:47 PM

Charged with what; being cool?

Posted by: Matt | Jun 4, 2010 12:44:21 PM

RW --

"The duty of zealous advocacy is no less the law than the law against assault."

That's news to me. How many years can you get for "failure to be a zealous advocate"?

But it's off the point anyway. It's not so much that I oppose zealous advocacy as that I favor truthful advocacy. That means no attempts to mislead the tribunal or paint a distorted picture.

Posted by: Bill Otis | Jun 4, 2010 1:44:16 PM

Zealous advocacy most certainly includes the obligation to characterize facts in a light most favorable to the client, even if its not the characterization one would spontaneously apply to the facts outside her role as an advocate. Reasonable people could construct a justice system in which nobody had such an obligation. But this doesn't happen to be our system. If you want to change it, so advocate, but don't pretend that public defenders act outside the boundaries of the one we have just because you aren't comfortable with the existence of the Sixth Amendment right to counsel as it is currently construed.

Posted by: RW | Jun 4, 2010 2:15:44 PM

RW --

1. I know what zealous advocacy is. I practiced it in federal court for about 20 years. Not not a single time did I try to garnish the facts one way or the other.

2. "Zealous advocacy most certainly includes the obligation to characterize facts in a light most favorable to the client, even if its not the characterization one would spontaneously apply to the facts outside her role as an advocate."

Translation: "Zealous advocacy most certainly includes the obligation to characterize facts in a light most favorable to the client, even if its not the characterization one would say is within shouting distance of being the actual truth."

Beyond that, talking to the court as a balanced and candid person actually INCREASES your client's chances, because judges come to like and trust attorneys who they know play it straight, and distrust PR presentations. It is not merely ethical lawyering, but smart lawyering, to understand that your standing in the eyes of the court is more important than your standing in the eyes of the client.

3. "Reasonable people could construct a justice system in which nobody had such an obligation. But this doesn't happen to be our system. If you want to change it, so advocate..."

I have. And am.

4. "...but don't pretend that public defenders act outside the boundaries of the one we have just because you aren't comfortable with the existence of the Sixth Amendment right to counsel as it is currently construed."

Defense lawyers are ALWAYS pushing for reform.....for others. When it comes to reform that might obligate THEM to be more tethered to the truth, well, my goodness, what an outrage!

Have you ever given thought to why lawyers are held in such low public esteem?

Posted by: Bill Otis | Jun 4, 2010 3:59:17 PM

There is a form of temporary insanity that lurks below the surface among lawyers whose entire caseload involves the emotion and tension of pressure filled criminal cases. There is so much work, but so little time in which to do it. Triage of one's caseload schedule is crucial to the performance of the job. I don't know what was requested here, but the lawyer was frustrated and didn't know what to do. The physical altercation most probably does not reflect the true person.

Imagine going to work everyday and fighting windmills. The Public Defender is getting it from all ends, 1) his boss 2) client 3) client's family 4) court 5) prosecutor. At times, it is simply overwhelming and I believe this is what happened here. I cannot condone what the PD did, but I think the DA should dismiss the charges immediately and resolve the problem some other way. Lawyers, in general, can snap every once in a while. Nobody knows what public defender pressure is like unless you are a PD.

I would recommend a $500.00 donation to the charity of his choice and an apology in front of the entire DA's office. This should be off the record and informal. You need this warrior in the court house!

Posted by: Stanley Feldman | Jun 4, 2010 4:30:00 PM

Let's be clear. Defense attorneys should not say anything that is objectively false. They should not make statements with no purpose other than to lead the court to a conclusion that is objectively inaccurate.

But this is a far cry from saying that they should not "paint a distorted picture" of the facts. If I point to mitigating aspects of an offense, or a criminal record, with no mention of aggravating aspects that don't seem to occupy the court, am I "distorting" the overall "picture"? What if my person view of the offense is that it is more aggravating than I am letting on, or that the defendant seems more likely than most to re-offend?

If you honestly believe that the system would be better off in such cases by compelling the defense attorney to tell the court the same thing she would say under truth serum, continue your advocacy toward that end. My beef with your statements is that you don't recognize that legal authorities have already resolved these questions against you. Maybe your position could be fully developed, or maybe your emphasis will change when the question is put to your more directly, but the tenor of your posts seems to suggest that defense attorneys should, as a consequence of their duties "as citizens and members of the community," defer to your view of their proper role rather than the one set forth in governing legal authorities. The rule of law is not always the same as making things easier for law enforcement.

Posted by: RW | Jun 4, 2010 5:13:10 PM

I hope this starts a fashion. All lawyers and judges are land pirates, far more dangerous to the public than any mass murderer or serial killer. Mobs should chase them, beat them, and drive them out of town. As they make war on our besieged nation, so the public has every right to defend itself in self-help. There is no legal recourse against the cult criminal. If liability is a substitute for violence, so self-dealt immunity fully justifies it.

Posted by: Supremacy Claus | Jun 4, 2010 6:26:42 PM

RW --

"My beef with your statements is that you don't recognize that legal authorities have already resolved these questions against you."

They have also resolved the permissibility of the death penalty for adults of sound mind, but this blog is full to the brim with people seeking "reform." I disagree with them, but I have never said they're wrong to keep arguing the issue. Are they?

"The rule of law is not always the same as making things easier for law enforcement."

I quite agree. At the same time, a rule of law that puts truth at the back of the ethics bus is a rule of law in need of reconsideration. As I asked before, have you ever given thought to why lawyers are held in such low public esteem?

Posted by: Bill Otis | Jun 4, 2010 6:26:57 PM

Stanley Feldman --

Actually, the prosecutor's office should recuse itself, since one of its own was the victim. The case should be handed off to lawyers brought in from a different office. On the merits, I see nothing wrong with your suggested outcome if this is a one-time thing. If the attacker comes with a history of having a chip on his shoulder or unusual belligerence, that would make it a different matter.

Posted by: Bill Otis | Jun 4, 2010 6:35:16 PM

Bill --

My concern is that you conflate calls for reform with criticisms of defense attorneys for undertaking their roles in the system that currently exists. I'm not saying you shouldn't argue for a change in how the duty of zealous advocacy is applied. I think that question is interesting and worth discussing, though I think you may be undervaluing some of the rationale for confidentiality and advocacy. And yes, lawyers are probably held in lower esteem because their duties sometimes compel them to provide slanted views of fact and law. But this is a reason for reform, not a legitimate argument for tempering advocacy given current authoritative understandings of legal duties.

My goal is to extract a simple admission from you that attorneys who "present a distorted picture" are sometimes faithfully discharging their duties to the court, whether or not you happen to like that fact.

Posted by: RW | Jun 4, 2010 6:44:17 PM

Sclauz-

Yes, murder will fix everything. All our problems are due to a class of parasites that feed on our misery, and that mode of social organization can be finally eradicated by mass violence toward the particular individuals that occupy that class. If only that had ever been tried before! You are part of a proud tradition of Hutu radio broadcasters, and Khmer Rouge political theorists.

Enjoy your rage fix.

Posted by: RW | Jun 4, 2010 6:50:35 PM

RW --

"My goal is to extract a simple admission from you that attorneys who "present a distorted picture" are sometimes faithfully discharging their duties to the court, whether or not you happen to like that fact."

I respectfully decline. Let's say I have a 14 year-old at home. He asks me what I did that day. I tell him, truthfully, that I told a distorted version of the facts to the court, but that's what I needed to do to fulfill my obligations of advocacy. He then asks me, "But dad, you tell me all the time that I have to tell the truth no matter what. So I do, but you don't?"

So what do I tell him? You'll understand when you're older? What do you think pays your way to summer camp? Why don't you go to your room?

It's often said that we are the moral compass to our children. And that's true. But sometimes they are a moral compass to us. When you have to start explaining to your kids why it's OK to deceive people, you know right there that there's something wrong with what you're doing. And you will never again look the same in their eyes.

I won't do it.

I never discuss my family on this blog, since I use my real name. But assuming that I have kids, I would never, ever do something that would make them ashamed of me or doubt my honor. Such behavior would be a betrayal of them beyond forgiveness.

The first obligation of a father is to see to the physical safety and nourishment of his kids. The second is to help them grow up clean and straight, with respect for themselves, others, and for a wholesome and honest way of living. There is no code of ethics, no version of "zealous advocacy," and no amount of money that could tempt me to have to give them a fancy explanation of why I get to do things they would be punished for doing.

Sorry to go preachy on you, but that is how I think. I'm not going to have seven lifetimes coming up after this one to correct what I do wrong.

Posted by: Bill Otis | Jun 4, 2010 7:18:01 PM

I'm not asking you to agree that you would like to perform the function of a defense attorney. I'm asking you to acknowledge that defense attorneys faithfully discharge their duties when they act as advocates for positions they don't believe.

There is absolutely nothing wrong with choosing a life in which your honest beliefs never have to be tempered. I'm glad you never felt you had to do that.

My question is why you criticize defense attorneys who discharge a duty that the law requires of them. It just isn't true that defense attorneys are always privileged -- legally -- to give the same assessment of fact and law as an advocate, in a courtroom, as the last thing standing between a citizen and prison, that they would give to a friend over a cup of coffee. Maybe that's not how it should be. Or maybe we charge someone with a strict duty to present the other side of an argument because we want to make sure judges and juries aren't deprived of an important perspective just because neither of two lawyers happens to believe it. It doesn't matter. The point is that you ought to respect their role in the process. Maybe I'm wrong, but I don't really get that from you.

Posted by: RW | Jun 4, 2010 7:35:20 PM

These all are very hard questions, susceptible to no easy answers. I have been a federal prosecutor for 33 years. I have never viewed my role as being a zealous advocate AGAINST a defendant, but rather as a zealous advocate for the fair administration of justice. Public defenders, in my experience, generally and most of the time try very hard to achieve the very best outcome for their clients. That is as it should be. My job, i have always believed, is much different, in part because the defendant is, at the end of the day, ONE of my clients, My job, as a public prosecutor, is to be scrupulously fair, as best i can do it, whether it favors the prosecution, or, sometimes, favors the defendant. Unlike public defenders, I am not responsible as an advocate to any particular person. I am rather responsible to a set of principles that are reflected in my oath of office.

I believe that is what Otis is saying in terms of how he perceived his role as a prosecutor when he held that job. To be truly an ethical prosecutor, I believe that is how one MUST perceive his or her job.

I do not view defense lawyers as having similarly catholic duties. Their job, in representing their clients, is not, unlike a prosecutor, to seek the truth. it is to present as best they can a representation of reality most consistent with their client's interests, without of course personally lying to or intentionally misleading the "tribunal".
For the most part, the odds remain substantially stacked in faovr of the proseution in virtually every case.

So I much value these kinds of discussions here, especially when we can have them stripped of the tiresome rhetoric of "liberalism" or "conservatism". These are very hard issues. i battle them every day. I honor all the imput you all give here, so long as it is thoughtful, which it mostly is, and not political, which debases the seriousness of this very important question.

Posted by: Grotius | Jun 4, 2010 8:26:30 PM

Grotius -- I appreciate your thoughtful view of both of our jobs...

Posted by: RW | Jun 4, 2010 8:44:09 PM

RW: The lawyer profession is a lawless criminal syndicate. Its sole validation is at the point of a gun, from Army Airborne. It makes 99% of the policy of government. It is in utter failure of every self-stated goal of every law subject. It is the one that has dealt itself absolute immunity from any accountability for its carelessness and intentional plunder of our besieged nation. Immunity justifies violence. Your comparing the legitimate comments on jurisprudence here to major, historic genocides is insulting and offensive to the victims of ethnic cleansing. If any reader has lost a loved one to genocide, you need to apologize to that reader.

I do not propose any such remedy. I want the 15,000 strong lawyer hierarchy to be arrested, tried and executed. Crime would end for all practical purpose when the protection of the lawyer is removed, and criminals are eliminated. The economic growth rate will jump to 9% instead of the anemic 3% in good times. The family will get re-established, and freaks will no longer dictate social policy. Manufacturing will return to the nation. Educational attainment will shoot up as school discipline returns. Bastardy will not be tolerated, and all its social pathologies will end. Feminism, a hate group, will be shut down, and all its male running dogs will be fired from all benches, and law schools. Government will be a third the size it is now, and its horrible, infinitude of regulatory gotchas will be gone. Why? Because the government lawyers will be gone. Technology will get immunity. The lawyer will be the one hunted down, and harassed into non-existence. Japan has 100 million people and 10,000 lawyers. We have 300 million people and 1.5 million parasites, when we should have 30,000. No crime. High productivity. Great educational attainment. Good order. If you have ever been there, America looks like a mess after spending only a few days there. They are like the Vulcans on Star Trek, and superior to us.

The lawyer's job is to promote pure evil, and he must be stopped.

Posted by: Supremacy Claus | Jun 4, 2010 9:10:16 PM

I can't imagine how anyone would think your entirely serious suggestion of hunting down and executing each of the 1.5 million people who practice law in the United States could be compared to historical mass murders.

Fortunately, you are patently a joke to anyone, like me, who is stupid enough to read you.

I honestly hope you get help and treat your paranoia and anger issues, and wish you well. In the meantime, I am simply going to ignore you.

Posted by: RW | Jun 4, 2010 9:31:37 PM

Bill:

I have friends who were convicted and sent to death row and THEN exonerated by DNA -- prosecutors like you perverted justice to send them there. I have others convicted of murder and, most recently child rape, who were later exonerated. YOU and your ilk can take a man's life and liberty by merely proving he is guilty beyond a reasonable doubt not that he actually did it. My job is not to act as judge, jury and executioner, my job is to make the prosecution prove its case to fight it every inch of the way. Ultimately, the same gov't whose sanitation "engineers" can't pick up garbage without leaving large parts of it on the street in front of my house, is the same gov't who hires prosecutors to try cases.

The Chinese have the justice system you propose, despite all its warts I'll keep ours.

Posted by: anon | Jun 4, 2010 9:42:24 PM

Anon: If you are a defender, then for sure your job is to ensure we on the prosecution side prove our case beyond a reasonable doubt. If we prosecutors cannot overcome that burden, then no defendant should be deprived of his or her liberty. I take that as a sacred part of my job as well.

SC: Your rant is neither constructive nor illuminating. It is merely splenetic, and thus simply boring. I am sorry for you. You do not belong in a discussion among serious people about critically serious questions.

Posted by: Grotius | Jun 4, 2010 10:03:49 PM

Grot:

The goal post for both sides is that of reasonable doubt. It isn't beyond all doubt of humanity fallibility. My job is to contain prosecutorial and police excesses and to ultimately serve as a check on gov't power. Bill doesn't get that, but from his post you get the impression he has rarely, if ever, had to close to a jury.

There are few people who I respect more than line cops and line prosecutors (current and former) who have had to go in to the trenches and fight hammer and tongs to fight for their communities and communal values. "Front office" and appellate poges, however, are another story.

Posted by: anon | Jun 4, 2010 10:10:54 PM

anon --

"...appellate poges, however, are another story."

Elena Kagan, call your office.

Posted by: Bill Otis | Jun 4, 2010 10:49:17 PM

anon --

"Ultimately, the same gov't whose sanitation 'engineers' can't pick up garbage without leaving large parts of it on the street in front of my house, is the same gov't who hires prosecutors to try cases."

Prosecutors who try cases have another name: Defense lawyers in training.

Posted by: Bill Otis | Jun 4, 2010 10:52:49 PM

I have not proposed the execution of 1.5 million lawyers. I have suggested that the rule of law is an essential utility product as water and electricity are. The profession should be smaller, but earn 4 times as much given the value it brings, and 10 times higher in public and self-esteem as today.

I have proposed the arrest, trials, and executions of the lawyer hierarchy, about 15,000 people and not of 1.5 million lawyers. Please do not distort my proposals to fit your fantasies of a loving critic of the lawyer profession. You get all those lives back in a year or two, as the 17,000 murders committed every year drop down to nearly zero or to a Japanese or Swiss rate.

As to seriousness, find me a topic more serious than a small group of people making 99% of government policy, and looking out only for themselves, to the massive detriment of the nation. For example, lawyer incompetence and self-dealing (to grow the federal government) caused the Civil War. For example, the misperception of the blinded lawyer caused the mishandling of the attack on the Twin Towers in 1993, and led in a straight line to 9/11. For about $500,000, the enemy took out $7 trillion from our economy. If a group is so stupid, incompetent, and self-dealing as to cause these damages, isn't it time for them to go. They will never go peacefully, and they control the three branches of government. Find me an alternative remedy.

If the public is oppressed by this criminal syndicate, the lawyer is doubly so, and the regular local judge triply so. It is a tribute to the efficacy of their indoctrination that the most oppressed defend them most. It is also a tribute that the indoctrination took place, and no one knows it. Try being the brightest, toughest, wealthiest lawyer around. Then cross them. They will destroy you and there is nothing you can do about it.

If formal logic ever applied to the law, and liability is a substitute for violence, then the obverse is true. Immunity justifies violence as a recourse.

You also implied that I have a psychiatric problem. That is the way of the left, to attack the person. Why? The facts abandoned the left 100 years ago. However, I am not the one who believes in mind reading, in future forecasting, in the model of behavior being a fictional character, that 12 strangers can detect the truth using their gut feelings, after excluding any with knowledge. As ambassador from earth to this lawyer Twilight Zone, I can assure you. Those who believe in those central lawyer doctrines are nuts.

As an aside, Grotius, who enumerated the five purposes of the criminal law? A priest. His utterances are unlawful in any legal matter in this secular nation.

Posted by: Supremacy Claus | Jun 4, 2010 11:09:22 PM

Grotius --

I sense that one of the reasons you became, and remain, a prosecutor is precisely that your job is to get at the truth. Is that correct? If so, you will never have to give a fancy explanation to your kids about what you do or why. That in itself is worth a great deal.

The question is not whether a defense lawyer may advocate zealously. Of course he may. Indeed I preferred the ones who did, since the others were known around the office as "a walking 2255."

The question instead is what is proper as part of a zealous defense. You say that intentionally misleading the jury is out of bounds (and I agree, of course), but it's done all the time and gotten away with all the time.

The problem with zeal is not that it's bad per se. The problem is that so much slick, sleazy, sharp and deceptive behavior gets by flying under its flag. There are some defense lawyes who never practice that way, but there are others who make a career of it. Since you've been in the business 33 years, I'm sure you've seen both types.

This country is simply swimming in dishonesty, both hard core and soft core. The federal government makes promises it can't possibly keep, because there's no money. Business is into one sleazy stunt after the next, from the fine print in your frequent flier miles to your credit card bill to your car warranty. Individual consumers routinely lie on their mortgage applications (about income, assets and existing debt).

The legal profession has an unfortunately earned reputation as being even sleazier that most of the rest of what goes on in civic and commercial life. We can do better, and we should.

As you have said, "the odds remain substantially stacked in faovr of the proseution in virtually every case." The reason for this is that the defendant is guilty in virtually every case, and a straightforward presentation of the evidence will prove it. The central conundrum of defense work then, is that a straightforward presentation of the evidence can't be allowed. To me, this presents an inherent moral tension. One way to help ease that tension is to move the canons of ethics more in the direction of truth-seeking, even (indeed especially) for defense counsel.

Posted by: Bill Otis | Jun 4, 2010 11:30:51 PM

Well crud, anon:

I AM one of those appellate dudes. In my defense, however, i have never been shy about telling my court of appeals when we or the district judge screwed up, either in terms of the guilt phase of a case or sentencing. Of course, purely by the strategy of trying always to be honest with my court of appeals, I do sometimes get the benefit of the doubt in close cases. But then, I need only to let them down one time, and that benefit of the doubt is history. Which is why it is so important to me that that never happens.

That being said, your perception of YOUR job is absolutely correct and critcal to the fair administration of the system. It cannot function as designed unless defense counsel give their all to ensure that their clients' rights are scrupulously observed, and that the govt. is zealously required to satisfy its burdens of proof. Unfortunately, the lawyers who make up our CJA panel are not always up to that. Often times, the reality is that in order to ensure a fair outcome, and of course a bullet proof record as well (I do not mean to imply that my views here are entireoly Quixotic) my lawyers have to be as careful protecting the rights of the defendant as they do prosecuting them. There is no point getting a conviction or a long sentence if we cannot support it on appeal, and i do not permit my lawyers to "guild the lilly" in front of the court of appeals.

So we need to do something to raise the quality of defense counsel available to impecunious defendants, in order to ensure that we who are prosecutors are held to all our burdens. I do not know how to do that. I only know it needs to be done if our system of justice is going to have a chance to operate as it is supposed to. And that is truly a Quixotic ideal.

Posted by: Grotius | Jun 4, 2010 11:33:10 PM

RW --

I agree that defense counsel may properly argue the law to his heart's content. Reasonable minds differ all the time on the law, see, e.g., so many 5-4 Supreme Court opinions.

They ought not, however, be allowed to shade the facts, or to try to convince the jury of something they know, or have ample reason to believe, is false.

My father had a name for that: Dishonesty.

I repeat: If counsel is doing something he would punish his teenager for doing, he needs to hit the re-set button.

Posted by: Bill Otis | Jun 4, 2010 11:43:26 PM

i have to agree. silly me i thought the ideal was between the judge, DA, Defense Attorney and teh jury was to find out the TRUTH in that situation before them.

If the individual did it and no excusing circumstances exist HAMMER THEM.

if they didn't do it. Get back to work and find the right person.

silly me!

Posted by: rodsmith | Jun 5, 2010 1:31:51 AM

The lawyer assumes that the trial has any validation. It does not. It comes from the disputation method of arriving at an answer in Scholasticism. That has no external validation as a methodology. It is Medieval garbage. It has less validity than a Broadway musical. One knows whether one enjoyed the musical or not. It has an objective measure of success. No one knows what happened in a trial. The Medieval jury had good knowledge, and served to further the search for a fair outcome. They had walked the boundaries of the disputed land ten years earlier. They knew the criminal defendant since childhood and all his tricks. They contributed that knowledge. The lawyer wants people who are totally ignorant. The judge is not allowed to gather evidence.

The trial, and any appeal of the verdict are absurd theater, fairy tales told to children.

Posted by: Supremacy Claus | Jun 5, 2010 1:39:51 AM

So Bill, lets get specific. May a lawyer who believes her client to be guilty argue to a jury that the prosecution has failed to prove guilt beyond a reasonable doubt? May she advocate for the suppression of evidence, and then argue that the resulting case is insufficient, knowing the prosecution could have produced a better one? Both of these practices seem to fall squarely within the definition of "painting a distorted picture of the facts." But I would submit that governing authorities in every jurisdiction in the country hold not only that such conduct is permissible, but that it is compelled by disciplinary rules and the sixth amendment. Boiled to its essence, your position seems to demand that we substitute for the rule of law the rule of what Bill would be comfortable telling a hypothetical teenager. It is at bottom a demand that defense attorneys practice a kind of civil disobedience against the constitution while we await utterly fundamental epiphanies from the Supreme Court and the rules drafting committees.

Again, the question is not what lawyers should be allowed to do, but what respect we ought to have for their conduct given what the governing legal authorities actually demand of them.

Posted by: RW | Jun 5, 2010 1:42:29 AM

Defense lawyers offer the location of the little girl's body in exchange for not seeking the death penalty. Offer is declined. The defense lawyers then go all out during the trial, arguing client's innocence and accusing the girl's parents of the murder. Not a single lawyer here will understand, there is a problem here. It would be called lying by the ordinary person or trying to mislead the court.

Posted by: Supremacy Claus | Jun 5, 2010 6:37:30 AM

Rod: That is correct. Any truth seeking is prohibited. If a judge wants to visit the murder scene to get an idea of what happened, that is grounds for impeachment.

If the defense lawyer knows of the guilt of the client, and puts on a weak performance, he may be sued for malpractice. The defense may have a duty to put on a weak performance to preserve an appeal argument of inadequate defense.

I don't know if they get fired for not clearing cases, but the frequency of hiding or destroying exculpatory evidence by prosecutors is pretty high.

Posted by: Supremacy Claus | Jun 5, 2010 6:49:11 AM

Bill, Your call for "honesty" would have much more weight if it wasn't for the fact that most instances of "dishonesty" on display in the criminal justice system (most especially at the state level) are exhibited by prosecutors who have substitued "winning at all costs" for "seeking justice" as their North Star and Judges (mostly former prosecutors) whose idea of being an "independant" includes ignoring the rules of evidence, and often a basic sense of decorum, when they happen to dislike a paticular defendant, case, or advocate. I'm willing to give you a pass since your experience appears to be more confined to federal court which, admittedly, usually means a better quality of professionalism on all sides, but most justice in this country occours in local courts where your notion of prosecutorial "honesty" is totally laughable. Frankly, with many prosecutors in state court (particularly some inexperienced and priviledged baby prosecutors who a good friend once called "debutantes and and fratboys against crime") one is lucky if they have a better grasp on basic concepts of the law than Supremecy Clod, let alone the ability to set aside the desire to get a "w" when a little thing like honesty or justice might get in the way.

Posted by: Ferris Bueller | Jun 5, 2010 6:57:00 AM

RW --

"May a lawyer who believes her client to be guilty argue to a jury that the prosecution has failed to prove guilt beyond a reasonable doubt?"

Yes.

"May she advocate for the suppression of evidence, and then argue that the resulting case is insufficient, knowing the prosecution could have produced a better one?"

Under existing law, yes. This is one reason the exclusionary rule needs to be changed in favor of other remedies, such as penalizing the officer who committed the illegal search rather than penalizing the public by increasing the likelihood of an erroneous verdict.

"Both of these practices seem to fall squarely within the definition of 'painting a distorted picture of the facts.'"

The second one does but the first one doesn't. To argue that the facts adduced by the prosecution don't meet the required standard of certainty is not dishonest.

"But I would submit that governing authorities in every jurisdiction in the country hold not only that such conduct is permissible, but that it is compelled by disciplinary rules and the sixth amendment."

The text of the Sixth Amendment says absolutely nothing about disciplinary rules. At the time of its adoption, the English practice had been to bar felony defendants from having counsel. It was intended to overturn that practice.

As to the disciplinary rules that have developed in the 200-plus years since then, I am unaware of a single case in which a lawyer has been disciplined for being excessively honest with the court. If you can cite such an instance, I'd love to see it. After I see it, I'm going to use it as the poster boy for exactly the sort of reform I'm talking about.

"Boiled to its essence, your position seems to demand that we substitute for the rule of law the rule of what Bill would be comfortable telling a hypothetical teenager."

Baloney. RESPECT for "the rule of law" does not even come close to equalling AGREEMENT with the particular provisions in a particular bar-created rule. Nor do you get anywhere by belittling my position as being "what Bill would be comfortable telling a hypothetical teenager." One's children count for a good deal more than a "hypothetical teenager," and the moral lessons you give them are critical to their wholesome development. They also say a good deal about yours.

Your argument that the Constitution requires today's version of the disciplinary rules (which vary from state to state and year to year) is simply incorrect. What case says that? But more importantly in the present context, it's arid. There is a moral dimension to this debate that cannot be made to go away by pointing to the status quo rules (even if they were all the same) and declaring that all is well in the practice of criminal defense.

All is NOT well. As I pointed out, and you do not dispute, the country is swimming in sleaze. (You can't watch the tube for 15 minutes without seeing some ad that is a come-on for something whose real terms are set out in some unreadable fine print that shows up on the screen for three seconds). And the legal profession is correctly viewed by the public as being even sleazier than most of the rest of what goes on.

At the outset of this comment, I answered some questions you asked me. Now let me ask you some.

Do you tell your kids that's it OK to be deceptive? If not, why not?

Do you think suppressing the truth is the way to build a trustworthy and reliable inquiry, in court or anywhere else?

Do you think our culture -- our legal culture and the rest of it -- is suffering from an excess of candor, or a deficiency?


Posted by: Bill Otis | Jun 5, 2010 7:48:21 AM

Great dialogue folks. Should I start a new post on the specific topic of defense advocacy.

Posted by: Doug B. | Jun 5, 2010 10:05:45 AM

I would like to hear some candor from anonymous defense lawyers about any intentional insertion of inadequacy as a tactic to preserve the appellate argument of inadequate defense. Appellate judges just invented that argument anyway. It is not mentioned in the constitution. The argument does not assert innocence, just prejudicial incompetence of some kind. Given the infinity of rules, and their ambiguous/contradictory interpretations, even the Dream Team can be found to be deficient at some point in a trial. Is the intentional withholding of a motion or of informed consent by a defense lawyer as a tactic to preserve an appellate argument, is that shady or ultra-sophisticated advocacy? Given the 75% guilty verdict rate in the criminal law, is it a new duty to insert this "poison pill" into the proceedings?

Posted by: Supremacy Claus | Jun 5, 2010 11:02:48 AM

Deception is an absolute duty in an adversarial situation. False intelligence that the invasion of Europe would take place at Calais caused German army defense resources to be sent there. That saved 1000's of lives on both sides, and increased the chances of success of the invasion.

The trial may be needlessly adversarial. The Scholasticism method of disputation is Church methodology and unlawful in our secular nation. It may actually be disruptive to accuracy of verdicts. It is very expensive and wasteful. It is dramatic and idiotic in appearance. The judge is dressed and acts like a pompous buffoon, bringing ridiculousness to a serious enterprise. It excludes the most expert person in the room from making inquiries, the experienced judge. It has no scientific validation, except its being conducted at the point of a gun. Scientific validation is a synonym for verifiability and repeatability. Those are synonyms for Equal Protection and for the word, justice, itself. These are mandatory, not discretionary. The lawyer covers up these defects to protect a lucrative practice.

Posted by: Supremacy Claus | Jun 5, 2010 11:12:08 AM

bill: "As I pointed out, and you do not dispute, the country is swimming in sleaze."

me: why would anyone dispute a statement like that? of course, you might find that one's definition of sleaze differs from yours. i would select rupert murdoch as the biggest sleaze merchant around - his entire media empire is built on objectifying women and promoting a dumbed down "news" that caters to a lowest common demonator which is constantly in the name of promoting an ultra conservative agenda. i guess its little wonder that news corp is no promoting sarah palin so heavily - she perfectly caters to his target demographic and perfectly reflects the dumbing down of american politics and society.

bill "You can't watch the tube for 15 minutes without seeing some ad that is a come-on for something whose real terms are set out in some unreadable fine print"

me: and that is due to conservatives like you try to remove or limit any sort of government oversight and consumer protection even from blatent dishonesty. come on bill, everyone knows that its your side which is promoting the dumbing down of america. your side made a conscious choice to embrace the religious right and spread antigovernment hatred to win elections and as a result you can only win elections by catering to the dumbest elements of society.

bill: "And the legal profession is correctly viewed by the public as being even sleazier than most of the rest of what goes on."

me: sweetie, the legal profession really has nothing to do with it. well maybe a little, but your targeting the wrong attorneys - you should be targeting the ones who represent giant corporations that put profits above everything - especially society and the lobbyists who have made sure that our laws and legal system cater to the ultra rich and corporate interests - including by making sure that the prison-industrial complex has a steady stream of new admittees. and why does the general public have such a low opinion of attorneys - because the media frequently does exactly what you are doing - promoting hatred of criminal defense attorneys as being sleazebags who must be awful people to represent such people. of course, I would see the hatred of attorneys as being a general element in the dumbing down of society. not to mention the fact that your political party has determined that it helps its political interest to have people hate the very attorneys who would be the only ones who'd actually help the average member of your party - namely public defenders and personal injury attorneys.

and bill, when your a well paid functionary of the system, its bad form to complain about the results of the system :P

ginny :)

Posted by: virginia | Jun 5, 2010 12:19:36 PM

Ferris --

Assuming arguendo that state and local prosecutors are sleazebags, (1) that provides no excuse for opposing counsel to join the race to the bottom; and (2) it is yet further evidence that the entire profession could use a dose of more honesty, rather than continued fancy rationales for business as usual.

Fyi, my entire career has been either federal or academic. I was an adjunct at George Mason for a few years, and next year will be moving over to Georgetown. I started off in the Criminal Division at Main Justice, and a few years later went across the river as head of appeals for the USAO for the EDVA. That's where I spent most of my career (18 years to be specific). But I moved around here and there. I was a Special Assistant to the Secretary of Energy (working on Yucca Mountain matters) and Special Counsel to the President (George H. W. Bush). My last regular job was Counselor to the Administrator of the DEA, which is a neat gig because you get to be a combination of agency witch doctor and consigliere.

Just one other thing for now (and not directed at you): It is only on a site dominated by the criminal defense bar that I would get attacked as a Constitution-shredding primitive for suggesting that legal ethics should discourage deception and encourage candor. I have to think that the rest of the world would find much of the conversation that's been going on here surreal.

Posted by: Bill Otis | Jun 5, 2010 12:28:43 PM

Some of the individuals are outstanding, energetic police officers and top, highly knowledgeable investigators. These are crippled by the lawyer hobbling them. Would the Counselor to the Administrator be the one that recommended that our brave DEA warriors in the War on Drugs be fired because of an ethnic remark made during an arrest, after so many sacrificed their lives for our safety?

Posted by: Supremacy Claus | Jun 5, 2010 3:53:18 PM

Ginny --

1. Thank you for acknowledging that the country is swimming in sleaze. The next step, one might think, is to try to do something about it, and the legal profession is not exempt from these efforts.

2. No serious person could deny that "sleaze" includes intentionally deceptive and misleading behavior, particularly in a courtroom.

3. How did Sarah Palin get into a discussion of legal ethics? Is she even a lawyer?

4. The reason we see deceptive TV commercials is that greed is right up there with dishonesty as a cultural affliction. I have no use for either. The white collar defense bar, however, is growing fat off both. Do you have any problem with that?

5. While we're at it, do you support or oppose the honest services statute? Are you with the defense or the prosecution in the Black and Skilling cases? Because if you're with the defense, you've just taken out at the knees everything you've said about corporate greed being the real culprit. Although I disagree with many things the current version of DOJ is doing, I agree with the prosecution of those millionaire crooks -- who, incidentally, made a career of deceit. But according to their defense counsel, the worst they did was make some grey-area "business mistakes." Are you buying it?

6. "...its your side which is promoting the dumbing down of america."

On the tenuous assumption that your point has any relevance to this debate, it's incorrect. The dumbing down is the product of educational standards that have become as watered down as lawyers' ethics. Falling educational standards are maintained and administered, daily, by teachers' unions, which are one of the most faithful constituencies of the Democratic Party.

7. "...your side made a conscious choice to embrace the religious right and spread antigovernment hatred to win elections..."

I'll wait for you quote a single post of mine in which I embrace the religious right, or any religious view or theme whatever. In fact, the only religious bullying I have seen in these parts is from anti-death penalty commenters who claim to speak for God. And your condemnation of this religious braying is......where?

As for hating the government -- well, gosh, I sure spent a long time working for the thing I hate. On the other hand, ACTUAL hate for the government isn't all that hard to find on this site. Just look for any John K post and take a gander at his remarks about police and prosecutors. While we're at it, your own attitude toward those types, while not hatred, hasn't been too chipper either, has it?

8. "...and as a result you can only win elections by catering to the dumbest elements of society."

Let me try a version of the ontological argument here: "Consider a statement a more elitest than which cannot be conceived..."

9. "[T]he legal profession really has nothing to do with {the public perception of sleaze in its ranks]. well maybe a little, but your targeting the wrong attorneys - you should be targeting the ones who represent giant corporations that put profits above everything..."

I'm sorry, but am I remembering incorrectly that giant corporations and their leaders (Enron, Worldcom and Tyco) were represented by DEFENSE COUNSEL??? Did I get that wrong? But I'm sure they didn't try to, you know, mislead the jury or anything. Did they?

10. The reason the public has a low opinion of criminal defense attorneys is that it is well aware that adults can (1) choose for whom they work, and (2) choose the methods they enlist. When talented people with lots of options choose to work for killers, rapists, child molesters and zillionaire swindlers, one might expect that the public has the right to wonder why. Or do they not have that right?

11. "[A]nd bill, when your a well paid functionary of the system, its bad form to complain about the results of the system."

If you'd actually read the posts rather than imagining them, you'd see that I'm not complaining about the system's results, which are still pretty good (i.e., the guilty mostly still get convicted). I'm examining the moral basis of its methods, an examination for which you apparently don't care one little bit.

Be that as it may, I'll be sure to tell the US Treasury, albeit retroactively, that I was well paid. What with their having to shell out billions for gigantic entitlement programs, they could use a howler just now.

Posted by: Bill Otis | Jun 5, 2010 4:00:38 PM

Prof. Berman

I think a thread on the relative merits of an adversarial system vs. a civil law system might be a good frame for a discussion of defense advocacy, or advocacy in general.

Thanks for a great blog

Posted by: RW | Jun 5, 2010 4:17:39 PM

Doug --

It's a great topic. I might do a course on it at Georgetown next year. If I do, somehow I don't think there'll be any shortage of debate. Just my cup of tea.

We had a good debate on it over at Crime & Consequences, http://www.crimeandconsequences.com/crimblog/2010/02/the-ethics-of-criminal-defense.html, with lots of thoughtful responses. But as you know as well as anyone, when you do a blog, you have to stay current.

Posted by: Bill Otis | Jun 5, 2010 6:47:02 PM

Lawyer self-satisfaction is quite inappropriate. In the criminal law, 9 of 10 major felonies go unanswered. The lawyer client has nearly total immunity. Murder is a possible exception with about half getting solved. However, there are 100,000 unresolved disappearances a year. The murder rate may not be 17,000. It may be 70,000, allowing 90% of murderers to get away with their crime.

When the criminal law does get a hold of the defendant, where is the evidence that they have 1) a crime committed with so many mala prohibita and regulatory gotchas, most crimes are not even crimes; 2) any reliability of testimony, with most being false memory implanted by the irresponsible prosecutor; 3) any validation for the trial as a method to arrive at a correct answer (there is none), making the criminal law a ghastly farce devoid of scientific validation despite the horrific consequences inflicted on both defendants, and on future crime victims from lawyer incompetence, and atavism.

The lawyer is the sole practitioner allowed to operate as people did 700 years ago. There is no practice from 700 years ago that in any way acceptable today. This incompetence and atavism are enabled by the self-dealt immunities of the lawyer.

Posted by: Supremacy Claus | Jun 5, 2010 7:09:09 PM

bill: "do you support or oppose the honest services statute?"

me: since its not something i'd be likely to deal with, i really haven't thought about it and am not familiar with that statute. sorry :)

bill: "Falling educational standards are maintained and administered, daily, by teachers' unions"

me: out of all of the standard right wing attacks, that is one of the silliest. quite simply, anyone who understands even rudimentary economics should understand that richer districts in more desirable areas have a competitive advantage in teacher hiring over poorer districts in less desirable areas. unions have nothing to do with it - the "high achieving" schools which tend to be in wealhy areas with heavily involved parents have teachers who belong to the same teacher unions as teachers in the "low achieving schools" which tend to be in poorer areas with lower parental involvement. as i told you before, i come from an ultraconservative area where the schools are pretty lousy - unless you had heavily involved parents who would make sure that the school would give you the decent teachers and be able to participate in out of school enrichment activities such as music. and of course, its not the teacher unions who are trying to destroy science education and public education in general in favor of teaching religious doctrines.

bill: "While we're at it, your own attitude toward those types, while not hatred, hasn't been too chipper either, has it?"

me: sweetie, i'll admit that i do not like police very much. has a lot to do with growing up around with small town/rural county cops - while lots of attention gets paid to "driving while black" i think that more attention should be paid to "driving while being an attractive young female." yes, there are the warnings about the icky pervs who impersonate police officers, but what about the guy who actually does have a legitimate badge and uses it as license to harass young women? or perhaps you consider stopping a young woman on her way home from college and making her get out of the car and bend over for an extended period and then conducting a "search" of a laundry basket to "look" for marijuana which consists entirely of playing with her dirty panties to be legitimate police work.

and if that wasn't enough to make me not trust the police, i lived in a county where approximately half of the sheriff's department got charged and convicted by the feds for selling illegal weapons and drugs so i hope you understand that i have good reason to not like the police! :)

for the most part, i really don't have too many objctions to prosecutors - most of them i've tried cases against are highly ethical and able advocates. of course, there are bad and unethical prosecutors as well.

bill: "Let me try a version of the ontological argument here: "Consider a statement a more elitest than which cannot be conceived..."

me: its not elitist if its true, sweetie ;)

bill: "When talented people with lots of options choose to work for killers, rapists, child molesters and zillionaire swindlers, one might expect that the public has the right to wonder why."

me: if the public doesn't understand that even the most reviled member of society has the right to a fair trial - and that it is in society's best interest, maybe you have a point about the educational system. most of the icky perv and killer cases are represented by court appointed counsel - and i think that people generally do understand that even the worst person deserves a fair trial which includes competent representation. plus, i think that most people understand that people aren't getting rich off of court appointed representation. maybe i'm not such an elitist after all :)

the zillionaire swindler is a different animal because presumably they aren't using appointed counsel and the attorneys would have a choice not to represent them. still, even the worst person deserves a fair trial. perhaps a better example would be representing the tobacco companies in civil cases - of course, the reason why attorneys represent the tobacco companies is money - but if you find it more morally repugant to take a court appointed representation which is likely paying way below "market value" of a person on trial for their life - than highly paid representation a gigantic corproation who engaged in a systematic deception of an extended period of time resulting in thousands, if not millions of preventable deaths, i'm afraid i just have to disagree with you.

bill: "I'm examining the moral basis of its methods, an examination for which you apparently don't care one little bit."

me: its not that i don't care about it, sweetie, its that i disagree with you. there is a difference ;)

bill: "Be that as it may, I'll be sure to tell the US Treasury, albeit retroactively, that I was well paid."

me: sorry, but compared to the average american, you were. maybe if you lived in one of those "red states" that you republicans like to claim you represent you would have felt that way as well :P

ginny :)

Posted by: virginia | Jun 6, 2010 12:41:32 PM

Virginia's format is from Sic et Non, originated by Peter Abelard (yes, the same, as the one the tale of Abelard and Heloise), and perfected by St. Thomas Aquinas. It is part of the disputation method of Scholasticism.

Here St. Thomas argues the New Testament if the sole reliable guide to moral decisions.

http://www.aquinas.avemaria.edu/Aquinas-Hebrews.pdf

Posted by: Supremacy Claus | Jun 6, 2010 1:32:01 PM

And immediately the comments thread jumps the tracks. One would be hard pressed to intuit that this thread started with a story about an unprovoked physical attack, which has nothing to do with appropriate advocacy, however vigorous.

Posted by: USPO | Jun 7, 2010 10:37:29 AM

RW:

No kidding you misread me. How is losing your sh*t in a courthouse hallway "advocating for restraint in sentencing" or defending the client? Maybe the next time I think a huge downward variance from the AUSA's robotic guideline recommendation is warranted, I shall merely trip him on his way to his car. Then I can bask in your kudos.

Posted by: USPO | Jun 7, 2010 10:44:41 AM

USPO --

I am principally guilty for the "jumping" of the tracks. The reason I did it was that the attack here, while a serious matter to be sure, is anomalous. You almost never hear of such behavior by defense counsel. By far the more serious problem is that defense counsel try to smuggle in under the banner of ZEALOUS advocacy (which no one opposes) DECEPTIVE AND MISLEADING advocacy (which ought strenuously to be opposed).

P.S. Although this is also off-topic, I thought the USPO's generally knew sentencing law better than the judges, often a lot better.

Posted by: Bill Otis | Jun 7, 2010 12:31:57 PM

USPO

Your post does not merely criticize the conduct of the attorney described in the post. It seems to describe his conduct as the natural outgrowth of the "closet anarchism masquerading as legal wonkery" you seem to identify in the defense bar (a.k.a. the readership of this blog) generally. That is what was offensive to me. If your comments were intended more narrowly, I apologize.

Bill, I think you underestimate some of the legal prohibitions, both disciplinary and constitutional, on practicing with total "candor." I respect your perspective on how the legal system should be constructed -- there are fine arguments to be made against adversarial justice and in favor of civil law systems. But I think you should make more of an effort to disaggregate conduct that is and isn't sanctioned or compelled by governing authority from conduct that is unethical under current standards. I get sort of a "let's move on, counselors" vibe from Prof. B's last post on this thread, so I look forward to engaging you later.

Best to both of you.

Posted by: RW | Jun 7, 2010 4:14:30 PM

RW --

You get the last word. Thank you for engaging on this quite important subject.

Posted by: Bill Otis | Jun 7, 2010 7:04:47 PM

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