« Register for "Rewriting the Sentence II Summit" in DC in October | Main | A hot, long reading list for a hot, long (last?) summer weekend »
September 1, 2023
Two more lengthy sentences for Proud Boy members involved in Jan 6
As reported in this Reuters article, a "leader of the far-right Proud Boys was sentenced to 18 years in prison on Friday while another member got 10 years for their roles in the Jan. 6, 2021, assault on the U.S. Capitol by supporters of Donald Trump." Here is more:
Ethan Nordean, one of the group's leaders, was sentenced to 18 years in prison, short of what prosecutors had sought. Nordean had been convicted of seditious conspiracy and other crimes. "If we don't have a peaceful transfer of power in this country, we don't have anything," said U.S. District Judge Timothy Kelly.
In a statement to the judge, Nordean called Jan. 6 a "complete and utter tragedy" and said he had gone to the Capitol to be a leader and to keep people out of trouble. "While it is true that I wholeheartedly regret what I did that day, what I regret more is not being a better leader," he said. Nordean's attorney, Nick Smith, had argued for a sentence within the range of 15 to 21 months.
Earlier on Friday, Dominic Pezzola, a member of the group who did not play a leadership role and the only defendant of five to be acquitted of seditious conspiracy, yelled, "Trump won!" as he left the courtroom following his own sentencing. Pezzola was sentenced to 10 years in prison after a jury convicted him of other felonies, including obstructing an official proceeding and assaulting police....
Pezzola's attorneys had asked for their client to be sentenced to around five years in prison, and said in their sentencing memo that he had already served about three years awaiting trial. Steven Metcalf, one of Pezzola's attorneys, told the judge that Pezzola was caught in the "heat of the moment."...
The government had sought a 20-year prison term for Pezzola and a 27-year term for Nordean. Kelly on Thursday ordered two other former Proud Boys leaders, Joseph Biggs and Zachary Rehl, to serve 17 years and 15 years in prison, respectively....
Former Proud Boys Chairman Enrique Tarrio will be sentenced on Sept 5. The government is asking for a 33-year sentence.
September 1, 2023 at 05:21 PM | Permalink
Comments
Sic semper proditores---Thus be it ever to traitors!
Posted by: Dave | Sep 1, 2023 6:21:16 PM
from the NY Times:
The sentences imposed on Mr. Nordean and Mr. Pezzola were the third and fourth to have been handed down this week to five members of the far-right group who were tried in May for seditious conspiracy and other crimes in one of the most significant prosecutions to have emerged from the Capitol attack.
While Mr. Pezzola’s sentence was only half of the 20 years the government had requested, Mr. Nordean’s was the stiffest penalty issued so far in any case related to the Capitol attack and was the same as term given in May to Stewart Rhodes, the leader of the Oath Keepers militia, who was also found guilty of sedition in connection with Jan. 6.
Mr. Nordean, who once ran a Proud Boys chapter in Seattle, was granted so-called war powers in the days leading up to Jan. 6 by Enrique Tarrio, the group’s leader at the time. Though less of a household name than Mr. Tarrio and some of his other top lieutenants, Mr. Nordean rocketed to fame within the Proud Boys in June 2018 when a video of him knocking out a left-wing protester in Portland, Ore., with a single punch the year before went viral.
Mr. Pezzola, a flooring contractor from Rochester, N.Y., is best known for having appeared in video clips from Jan. 6 with a scraggly beard and a wild mane of hair, hammering on a window at the Capitol with a stolen police riot shield. The videos were prominently featured not only at the Proud Boys’ landmark trial in Federal District Court in Washington, but also at public hearings held by the House committee that investigated Jan. 6.
Mr. Pezzola was the only one of the five men charged in the case who was found not guilty of sedition. But the jury convicted him of six other felonies, including assaulting a police officer, a conspiracy to keep members of Congress from certifying the election and the destruction of one of the Capitol building’s windows.
Aside from the sedition count, Mr. Nordean was convicted of two other related conspiracies: one that accused him of disrupting the election certification and the other for interfering with members of Congress discharging their duties on Jan. 6
Posted by: anon13 | Sep 1, 2023 6:58:22 PM
These fellows had defense lawyers. I don't know who they were. Maybe Sidney Powell, if she still practicing? Anyway, I was wondering what we should make of the honesty of those lawyers as they did their darndest to get these guys off or, if not that, make excuses for them at sentencing.
Well, look, the defense bar was there for the Klansmen in the South when they were doing their thing, what with nooses and all that, so why would anyone have a problem here?
Posted by: Bill Otis | Sep 1, 2023 10:58:09 PM
Bill Otis writes, "what we should make of the honesty of those lawyers as they did their darndest to get these guys off or, if not that, make excuses for them at sentencing." Isn't that what defense lawyers are supposed to do? Or are now in Iran? China? Russia?
Posted by: anon12 | Sep 1, 2023 11:12:19 PM
anon12 --
The question was what we should make of the HONESTY of the Jan 6 defense lawyers. You respond, "Isn't that what defense lawyers are supposed to do?"
Isn't WHAT the thing they're supposed to do? Be dishonest? Make up a bunch of fiction to try to sell to the jury?
I was taught as kid to be honest and straightforward, and that the obligation to be that way doesn't go out the window if you have a law degree. Indeed, the higher you rise professionally, the more stringent your obligations to be honest become, no?
And I'd be interested in your take on the matter I raised and you whistled past: That the defense bar was there for Klansmen in the South when they were doing their thing, what with nooses and all that. To quote you, "Isn't that what defense lawyers are supposed to do?"
Is it?
What other kinds of assistance to lynch mobs do you think defense lawyers "are supposed to do"?
Posted by: Bill Otis | Sep 2, 2023 12:54:07 AM
anon12 --
Oh, and here's the question you refused to answer a few days ago: why are jurors are so much more trusting of police and prosecutors than of defense lawyers? Think that might have something to do with jurors' understanding of who's giving the straight story and who's handing them a bunch of diversion?
Posted by: Bill Otis | Sep 2, 2023 1:09:39 AM
Mr. Otis, have you forgotten the basic duties enjoined upon criminal defense attorneys:
An accused has the right to “fearless, vigorous and effective advocacy, no matter how unpopular the cause in which it is employed.” Offutt v. U.S. 348 U.S. 11, 13 (1954). Defense counsel is charged with zealously advocating for his client within the bounds of the law and is deemed “to best serve[] the public . by advancing ‘the undivided interests of his client.’” Polk County v. Dodson, 454 U.S. 312, 318-19 (1984).
In practice the role of defense counsel is best summed up by Justice White, dissenting in part and concurring in part in U.S. v. Wade, 388 U.S. 218, 256-258, (1967):
"Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
Posted by: Emily | Sep 2, 2023 10:41:25 AM
Emily --
Thank you for admitting, if not indeed proclaiming, that defense counsel are entitled to be sleazy and dishonest. One might think that an ethical standard that low would inspire a sense of modesty, but one would be wrong.
Still, I was wondering if you could fill in some specifics when the Justice (writing alone), said, "Undoubtedly there are some limits which defense counsel must observe..."
Like, for example, is it OK to lie in a serious matter even when you're not under oath?
Yes or no.
Posted by: Bill Otis | Sep 2, 2023 10:56:29 AM
Emily --
Also, does it make you all giddy to think about those bold, uncompromising defense lawyers who did their all to try to get acquittals for members of lynch mobs, and thus to help prop up Jim Crow for decades?
Charming stuff, dontcha think?
Posted by: Bill Otis | Sep 2, 2023 11:02:02 AM
Bill, do you have any account for who you think should get "bold, uncompromising defense lawyers" and who should not? Are you asserting NOBODY should get defense lawyers who are bold and uncompromising or are you asserting that only some defendants should be denied such defense lawyers?
Would former Prez Trump and his co-defendants be among those who you do not think should get robust defense representation?
Posted by: Doug B | Sep 2, 2023 11:43:09 AM
Doug,
I firmly believe one can give a robust defense without resorting to straight up lies. For example, I do not need to accuse a family member of a rape victim when I know my client did it.
Do you believe a robust defense should include such shenanigans?
Posted by: TarlsQtr | Sep 2, 2023 2:33:04 PM
Mr. Otis, nothing in the quotation from White says defense lawyers can be sleazy and dishonest. If any are, they should be disbarred. Now, let's look at prosecutors. Do you think any are sleazy and dishonest? The number of cases reversed for prosecutorial misconduct is legion: they have suppressed favorable evidence, intimidated defense witnesses, put on lying cops, shut their eyes to perjury, made secret deals with rat witnesses, on and on and on....so cut out the self-righteous, holier than thou pretense.
Posted by: anon12 | Sep 2, 2023 7:31:27 PM
Anon12. --
Cut out the cowardly anonymity. And have a nifty time celebrating with your Klan clients.
Posted by: Bill Otis | Sep 2, 2023 9:31:00 PM
I agree, Master Tarls, that a robust defense is possible without lies. Indeed, it is not just possible, it is required. A defense attorney is not acting ethically when he engages in “straight up lies.” See ABA Model Rules of Professional Conduct Rule 4.1: Truthfulness in Statements to Others.
But Bill has seemingly suggested in other settings that it would be inappropriate for a defense attorney to enter a "not guilty" plea for a defendant who seems to be factually guilty. Trump seems to be clearly factually guilty in the documents case (and perhaps other), so I am eager to know if Bill thinks it was improper for defense attorneys to support Trump’s not guilty plea(s).
Of course, some defense attorneys (and some prosecutors) engage in unethical behavior. But Bill seems to suggest that even some proper forms of representations are unethical for certain (or all?) clients.
Posted by: Doug B | Sep 2, 2023 10:54:07 PM
Doug
Can't give a full answer right now so I'll give the short version. Tell the truth even if it's hard. We all should have learned that as children. Lawyers don't get an exception.
Posted by: Bill Otis | Sep 2, 2023 11:15:41 PM
I concur, Bill: "Tell the truth even if it's hard." So, do you think defense lawyers acted improperly when entering not-guilty pleas on Trump's behalf --- in the documents case, if not in all four cases? As you suggest, it would be great if you would tell the truth, even if it's hard. Take all the time you need.
Posted by: Doug B | Sep 2, 2023 11:27:19 PM
Previously, Mr. Otis has defended the rights of cops to lie to suspects. By implication, he presumably also supports the rights of school teachers to lie to students about whether they should trust police if they're ever falsely accused of a crime. So he should cut out the self-righteous act. He's not pro-truth, he's pro-prosecution.
As for a defense attorney's opinion about the guilt of the client, some innocent clients are not very good at convincing others, including their own attorney, of their innocence. And those are the ones who are most in need of a vigorous defense. No defendant should first be required to convince their own lawyer of their innocence.
Also, as Mr. Otis surely knows, a plea of "not guilty" is not a claim of innocence, it's a demand that the state prove its case. Nobody has ever been convicted of perjury for pleading not guilty.
Posted by: Keith Lynch | Sep 4, 2023 8:27:49 AM
"Previously, Mr. Otis has defended the rights of cops to lie to suspects."
Actually, it was a unanimous Supreme Court, in an opinion by Justice Marshall (joined by Brennan and CJ Warren, along with all the others). Frazier v. Cupp, 394 U.S. 731 (1969).
But you know better, right? Well, do you?
"By implication, he presumably also supports the rights of school teachers to lie to students about whether they should trust police if they're ever falsely accused of a crime."
Your version of what's implied is idiotic and therefore, not surprisingly, false. Nor do you speak for me.
"Also, as Mr. Otis surely knows, a plea of "not guilty" is not a claim of innocence, it's a demand that the state prove its case."
I know this is tough for you, but when you say you're not guilty, that is a claim that you're not guilty (in addition to a demand that the state prove its case).
You had that same chance to claim you were not guilty before you became a convicted felon, but turned it down.
Posted by: Bill Otis | Sep 4, 2023 9:52:46 AM
Prosecutorial misconduct is a rather broad label and covers a lot of "sins," most of which are not violations of the Rules of Professional Conduct.
For example, nondisclosure under Brady is often referred to as professional misconduct, but, in many cases, the nondisclosure was information obtained by the police which never made it to the prosecution. Similarly, a question determined to be improper (i.e. called for hearsay or irrelevant evidence) is often referred to as professional misconduct even though the prosecution had a "good faith" basis for thinking that the question was proper. Or a bad closing argument is often referred to as prosecutorial misconduct. Good appellate judges recognize the difference between misfeasance and malfeasance and reserve prosecutorial misconduct for malfeasance, but many appellate judges label any mistake by the State as misconduct.
In short, there is a difference between intentionally lying to the tribunal (judge or jury) which is misconduct and unethical and vigorously presenting a client's case (whether the client is the people of a state or the accused) even if vigorously presenting a case requires "pushing the envelope" into some grey areas. Yes, there are some prosecutors who are unethical, but a lot of what is characterized as prosecutorial misconduct is simply sloppy lawyering in dealing with somewhat fuzzy legal issues.
Posted by: tmm | Sep 4, 2023 10:04:12 AM
tmm --
In the Trump prosecutions, where several of his lawyers are charged co-defendants, there is going to be a big and very interesting fight about where the line is to be drawn between aggressive (and creative) legal advice vs. pushing fanciful theories to help steal an election.
I have an observation and a question. The observation is that the liberals on this board who up to now have been taking the view that aggressive defense lawyering is a permissible (if not essential) function are now, out of hatred of Trump, going to start singing the opposite tune.
The question is: Where would you draw the line? I think that's a very tough problem and would be interested in your views.
Posted by: Bill Otis | Sep 4, 2023 10:16:01 AM
Bill, I think you need to distinguish "aggressive lawyering" and "aggressive defense lawyering" in at least some contexts. I am not aware of any "liberals" claiming that Trump's criminal defense lawyers should not have helped him enter a not-guilty plea after his indictment(s) even if they fully believe all the alleged facts in the indictment are true (and I do not think many would describe that as aggressive). That is why I have been asking you specifically if you think that behavior --- helping a client enter the plea of his choice at the outset of a criminal case --- is unethical and improper in any of the Trump cases. I do not think any "liberals on this board" would assert that it is. But I still do not know your view, and I am hoping you will get around to telling the truth of your views on this basic question.
A distinct issue is whether OTHER Trump lawyers, not acting a criminal defense lawyers, ought to be sanctioned or even prosecuted for advocating to Trump and others claims about the election that they knew were factually false in the hope of preventing the rightful winner of the election from taking power. Like so many matters of criminal law, the particulars of misconduct can turn on mens rea issues (eg, did Rudy et al. know how false their claims were). But however one sorts out these matters, they involve a form of "aggressive lawyering" that is distinct in kind from what criminal defense lawyers do when defending a client under indictment.
Finally, can you speak to whether YOU support cops knowingly lying to suspects? You rightly note that SCOTUS has upheld this tactic, but you have asserted "Lawyers don't get an exception" to your "tell the truth" admonition. I would be interested to hear if you think cops should get an exception. And, again, I hope you will tell the truth in your answer (if you ever give a direct one).
Posted by: Doug B | Sep 4, 2023 12:07:55 PM
Doug --
Let me take these one at a time in separate posts.
"Finally, can you speak to whether YOU support cops knowingly lying to suspects? You rightly note that SCOTUS has upheld this tactic, but you have asserted "Lawyers don't get an exception" to your "tell the truth" admonition. I would be interested to hear if you think cops should get an exception."
Yes.
Cops do not have the same ethical obligations that lawyers do. And when Justice Marshall, joined by Warren and Brennan and the entire Court, approve it (more than 50 years ago, making it older than Roe v. Wade), it would be immodest for me to say that they're dishonest people even if I thought they were, which I don't. Wrong much of the time, yes; dishonest (or approving of dishonesty) no.
Cops get to do all sorts of things lawyers and regular citizens don't get to do, like give orders not to move, or to show me your hands, and, occasionally, shot people. The requirements of their job are unlike the requirements of any other, and so necessarily are the codes that govern them.
Posted by: Bill Otis | Sep 4, 2023 12:57:57 PM
So to some up the takeaway from this exchange: “ Tell the truth even if it's hard. We all should have learned that as children” UNLESS you are the police!
Posted by: Cb | Sep 4, 2023 2:22:28 PM
Cb --
You got it, genius. The police are officers of the sovereign and therefore get to do stuff you and I don't get to do.
You should have learned that by eighth grade at the latest.
Posted by: Bill Otis | Sep 4, 2023 3:26:18 PM
Doug --
"I have been asking you specifically if you think that behavior --- helping a client enter the plea of his choice at the outset of a criminal case --- is unethical and improper in any of the Trump cases."
It is not UNETHICAL under current ethics rules, rules that require the lawyer to obey the client's wishes as regards what plea to enter (and whether to go to trial or bargain; and whether to testify if there is a trial).
Since, however, I believe it is IMPROPER for a lawyer to lie, it's likewise improper for a lawyer to tell the court that the client is not guilty when the lawyer knows or has good reason to believe that such a statement is false.
Since these two obligations are incompatible, what that means is that I would not become Trump's lawyer (or the lawyer for anyone else who wants me to lie for him). I've got better things to do with my time.
The reason our profession has such a lousy reputation with the public boils down to this: The client pays and the truth doesn't.
Posted by: Bill Otis | Sep 4, 2023 3:38:45 PM
Bill, it's a tough line. Unlike civil procedure, criminal procedure tends to accept "bad faith" lawyering (more on the defense side than the prosecution side). I can think of only one time (and it was on a collateral review appeal which is technically quasi-civil) in which a court in my state sanctioned a criminal defense attorney for making a frivolous argument on appeal. But we all have seen appellate decisions excoriating defense attorneys for ignoring significant evidence or the standard of review in challenging sufficiency of the evidence without any mention of sanctions for filing a frivolous brief or suggesting that, if that was all that counsel had, he should have filed an Anders brief. So clearly, making flawed arguments is not enough for criminal or civil sanctions.
But to take it outside of the Trump scenario, it is a regular question in RICO cases and white-collar crimes when some attorneys who are willing to play loose with the rules participate in setting up and implementing the criminal scheme. The attorney who know that he is setting up a business to launder money for a criminal enterprise is a knowing member of the conspiracy. The attorney who sets up what he thinks is a legitimate business in ignorance of the scheme to launder money is acting withing his role as an attorney.
Turnign back to the Trump scenario, my own experience working in a rural prosecuting attorney's office (which doubles as county counselor for the various departments including the election authority) makes me believe that the allegations here go beyond simply creative bad lawyering to intentionally planning conduct that was criminal. The issue for the courts in Georgia and D.C. will be whether creating fictional documents (false elector certificates) in an effort to set up the attorney's planned legal argument at a later stage of the process excuses the attorney from what otherwise would be criminal conduct.
Posted by: tmm | Sep 4, 2023 8:05:08 PM
Bill, the issue/question is not whether YOU want to be Trump's criminal defense lawyer, it is whether you think it IMPROPER for ANYONE to serve as Trump's criminal defense lawyer to help him enter a plea of not guilty in the documents case (or perhaps others). I asked you that question directly at the start of this thread --- to quote: "do you think defense lawyers acted improperly when entering not-guilty pleas on Trump's behalf" --- but you seem to be trying hard to avoid a direct answer. I read your comments as suggesting you think it would be improper for any defense attorney to represent Trump, but I do not want to misunderstand or misrepresent your views.
I appreciate the clarity of your support for cops lying, and I think you again reveal your statist tendencies when asserting the "sovereign" need not follow your "Tell the truth" credo. I now wonder what other "sovereign" agents you think need not worry about telling the truth: prosecutors? elected officials? judges? state university employees? Whenever you might think lies justified in the name of state power, since you are no longer a prosecutor, I do hope you will be willing to honestly and directly answer my question as whether you think it improper for anyone to serve as Trump's criminal defense lawyer to advance his not-guilty defense in the documents case (and perhaps others).
Posted by: Doug B | Sep 4, 2023 8:13:50 PM
Doug --
"I asked you that question directly at the start of this thread --- to quote: "do you think defense lawyers acted improperly when entering not-guilty pleas on Trump's behalf" --- but you seem to be trying hard to avoid a direct answer."
I think a defense lawyer working for Trump is complying with current ethics rules if Trump orders him to tell the court he is not guilty. I also think a defense lawyer working for Trump is dishonest if he tells the court that Trump is not guilty when he knows or has strong reason to know that is false.
Lawyers typically slip around this by saying, "My client pleads not guilty," so that it's coming out of the client's mouth not the lawyer's. That's not the most appetizing thing to do, but is more or less acceptable. The problem comes when the lawyer then uses fast talk, razzle-dazzle, diversion and misleading tactics to try to persuade the court/jury of something (the client's supposed innocence) that he knows is not the case.
Do you think intentionally misleading people is OK? I don't believe for a minute that that's how you were raised and neither was I.
As to cops lying, I believe the same thing Marshall, Brennan and Warren (and all their colleagues) believed. That puts me in company you usually like. Did they all of a sudden become crooks? I never thought you'd be in the "Impeach Earl Warren" crowd, but you learn something new here every day. But just so that we're clear on this, do you think the Court's unanimous opinion in Frazier v. Cupp was correctly decided or not?
P.S. You ask, "I do hope you will be willing to honestly and directly answer my question as whether you think it improper for anyone to serve as Trump's criminal defense lawyer to advance his not-guilty defense in the documents case (and perhaps others)."
If a lawyer is sufficiently far removed from reality that he really thinks Trump is factually innocent in the documents case, then he can morally represent our former President, yup. The problem is that anyone that far removed from reality is probably not competent to be a lawyer.
The public is onto something important in thinking lawyers are slippery and sleazy. I for one think, with the public, that there's too much dishonesty in the profession. Do you agree?
Posted by: Bill Otis | Sep 5, 2023 1:09:59 AM
tmm --
Thanks for your answer. It's a tough question. When I was an AUSA I stayed away from indicting defense lawyers unless the case was totally airtight. With any lesser standard, you risk raising questions for which the law has no very good answers.
I will probably say more about this later.
Posted by: Bill Otis | Sep 5, 2023 1:14:03 AM
Bill, I generally think you are smart enough not to conflate personal ethical opinions and constitutional doctrines. And yet you have a tendency, when pressed on topics like your support for cops lying, to reference constitutional doctrines. That move strikes me as "slippery and sleazy" --- or perhaps I should call it "fast talk, razzle-dazzle, diversion and misleading tactics" --- and suggests you need to work harder at practicing what you claim to preach. (Moreover, Frazer v. Cupp concerns whether a police misrepresentation make an "otherwise voluntary confession inadmissible," not whether the Justices believe that cops lying is generally ethical or appropriate.)
I do not think Trump is factually innocent in the documents case, but I also think in our adversarial system of justice every person should be formally presumed innocent by state actors and those in the legal profession until he is prepared to formally admit guilt or until the state proves his guilt in a court of law. When a criminal defense lawyer helps a client plead not guilty, I view that not as a dishonest factual representation, but as an honest report that the client is not (yet) prepared to formally admit guilt. Do you subscribe to the presumption of innocence, Bill, or do you also think judges are being dishonest --- or demanding that jurors be dishonest --- when they give jury instructions that jurors must render a not guilty verdict absent proof BRD?
As a general matter, I do think there is too much dishonestly in American society, but I view our elected politicians and other government officials to be a bigger part of the problem than the legal profession. I am quite proud to be a lawyer and law professor because our profession has very clear rules about obligations of honesty and candor. I wish the cadre of former federal prosecutors who sought to help Trump subvert an election had taken those obligations more seriously.
Posted by: Doug B | Sep 5, 2023 5:41:43 AM
Firebomb a cop car--nothing much. This is ideological.
Posted by: federalist | Sep 5, 2023 8:31:06 AM
https://reason.com/2023/09/03/i-knew-they-were-scumbags/
Pretty awful story. A little extra sentencing was doled out here . . . .
Posted by: federalist | Sep 5, 2023 8:32:05 AM
Bill Otis wrote:
"The public is onto something important in thinking lawyers are slippery and sleazy. I for one think, with the public, that there's too much dishonesty in the profession. Do you agree?"
In 2013, the "Center for Prosecutor Integrity" conducted a survey on the public's opinion as applied to prosecutors. Here are the results:
"Prosecutors occupy a central role in the criminal justice system, but over two-fifths (42.8%) say prosecutor misconduct is widespread. Strong majorities of persons say most cases of prosecutor misconduct are kept hidden from the public (71.4%), and similar numbers say prosecutors who commit misconduct are almost never punished (73.5%)".
link: https://www.prosecutorintegrity.org/pr/most-americans-doubt-fairness-of-criminal-justice-system-reveals-center-for-prosecutor-integrity/
And then from the Duquesne Law Review (Volume 57, Number 2 (2019)):
"Because prosecutors control the information held within their offices,
so that the public cannot extract information beyond whatever prosecutors disclose on their own initiative, the public has no means to obtain a more complete and balanced account. When prosecutors present their case in the court of public opinion, no one with inside knowledge can present the other side. Prosecutors' public speech is
less likely to serve accountability than to distort public understanding by providing an incomplete, misleading and altogether too rosy
perspective on their work".
link: https://dsc.duq.edu/cgi/viewcontent.cgi?article=3845&context=dlr
Talk about SLEAZY and SLIPPERY...
Posted by: SG | Sep 5, 2023 8:30:02 PM
SG --
First, I want to thank you for having stated outright, maybe two or three months ago, that defense lawyers have zero obligation to be concerned with the truth and are there solely to advance the client's interest. Of course the other side of that coin is that defense lawyers have no standing at all pretend to be Heroes of the Truth -- the very truth they could care less about.
And, as you and I know, the "Center for Prosecutor Integrity" is a group put together to advance the interests of criminals (like the ones to whom you are so faithfully devoted) by paying for a "study" with predetermined results. Do you think that's going to fool anyone?
Finally, I notice that you were conspicuously silent on this entry from Doug: https://sentencing.typepad.com/sentencing_law_and_policy/2023/08/interesting-survey-findings-on-jury-service-and-trust-in-legal-actors-and-institutions.html It showed that people who had served as jurors had a markedly better opinion of police and prosecutors than of defense lawyers. Could you tell us why that is?
Posted by: Bill Otis | Sep 6, 2023 12:09:41 AM
Triggered much Billy?
Posted by: Cb | Sep 6, 2023 12:23:22 AM
Cb --
Anytime you'd like to provide a substantive answer, you know, with reasons and stuff, feel free. And anytime you'd like to give your actual name and background, rather than slinking away in cowardly anonymity, feel free to do that too.
Posted by: Bill Otis | Sep 6, 2023 9:26:07 AM
Doug --
"Bill, I generally think you are smart enough not to conflate personal ethical opinions and constitutional doctrines."
And I always think you are smart enough to understand, and in fact you do understand, that ethics and morals routinely and importantly inform constitutional doctrines. They certainly did for the Founders. You also understand that we ask the police to do things no one else is asked to do, and that in doing those things, they are officers of the sovereign with powers private citizens don't have.
Or if you don't understand those things, do let me know!
"And yet you have a tendency, when pressed on topics like your support for cops lying, to reference constitutional doctrines."
This is the "answer" you give when you (understandably) don't want to go on record saying that Warren, Brennan, Marshall et al. were right wing stooges in the tank for the cops. Do you think Frazier v. Cupp was correctly decided or not? The entire Court did. What about you?
Hey, look, but I have to agree: What a scandal it is when you ask a lawyer a question about the ethics of police behavior and he refers to -- oh the horror! -- CONSTITUTIONAL DOCTRINE.
"Do you subscribe to the presumption of innocence, Bill, or do you also think judges are being dishonest --- or demanding that jurors be dishonest --- when they give jury instructions that jurors must render a not guilty verdict absent proof BRD?
Congratulations! You're the first person here who has put "presumption of innocence" in the same sentence as "Trump." Almost all your (selectively) civil liberties hugging commenters are ready to string him up right now. Oddly, you seem to refrain from admonishing them for this lynch-him-now attitude. Goodness gracious!
Still, now that you ask: Lawyers should be truthful and straightforward. Full stop. When they show up in court and say, "My client Mr. Trump enters a pleas of not guilty," that's the truth in its way. When, on the other hand, they hold their press conference ten minutes later to go on and on and on with one diversion after the next designed to get the audience to believe that Trump actually didn't do what the Florida indictment says he did, that is not the truth and it's not straightforward. Same deal with their zillions of other clients defense lawyers know or have strong reason to know did what the prosecution says they did.
Offering the client's plea -- that by itself is one thing. Going on for weeks or months with a bunch of diversions and shake-and-jive to persuade the jury (or anyone else) of something you know or very strongly suspect is false is dishonest. Isn't it?
"I am quite proud to be a lawyer and law professor because our profession has very clear rules about obligations of honesty and candor. I wish the cadre of former federal prosecutors who sought to help Trump subvert an election had taken those obligations more seriously."
Key word: FORMER. And it's all true: They left behind the obligation to advance the public interest to gobble up the vastly fatter paychecks you can make advancing the private interests of the next swindler or con artist who comes through the door. Welcome to defense work.
I'm pretty sure that, somewhere back there, you understand the breathtaking hypocrisy we're seeing in the contrast between the lionizing of lawyers who do their best for your average killer or rapist versus the horrified condemnation we're seeing of the lawyers who are doing their best for Trump. Personally, I wouldn't be either kind and never was.
Posted by: Bill Otis | Sep 6, 2023 10:13:20 AM
Bill, the thread is not about "ethics of police behavior," it is about your ethics. And it seems that you consider it ethical for police to lie. Is that right? Similarly, it seems you are now agreeing with me that it is ethical for a defense attorney to enter a not guilty plea for a client even when they strongly suspect the client is guilty. Is that right?
Just want to get those basic points clear without all the diversions and shake-and-jive you keep bringing up.
Posted by: Doug B | Sep 6, 2023 12:39:14 PM
Doug
You'd like to make it about me, sure, to continue the corrosive spiral of ad hominem blather that quite oddly you apparently want to encourage. But police , prosecutor, and defense attorney ethics are a much more important topic.
Was Frazier v Cupp correctly decided or not?
Posted by: Bill Otis | Sep 6, 2023 2:23:12 PM
Bill, you made it about you. And so when you confirm I have described your views correctly, I will address you question about Frazier v Cupp.
Posted by: Doug B | Sep 6, 2023 2:43:34 PM
Doug --
No, you chose to try to make it about me, by turning the subject away from what the ethics rules for lawyers should be to try to put me on trial for what you imply are my deficient ethics. Didn't know you were a grand jury, but, like I say, you learn something new here everyday.
You of course are not my prosecutor or judge, or anyone else's for that matter. There were people who had a legitimate interest in asking ethics questions about me, yes. That would have been DOJ for 25 years, under administrations of both parties. I seemed to be OK to them. And the White House under GHWB. Ditto. I hardly need, and am not particularly interested in, approval from the Internet world.
What you're doing with this thread continues an unfortunate trend you started some time back, in which you ridicule federalist with this silly and annoying "FFM," and ridicule TarlsQtr with this equally silly "Master Tarls." You adopt no similar derisive tactic with the numerous felons, perverts and liars who populate your comments section. And now you want to start in with me. We'll see how well that works.
As for Frazier v. Cupp, if you thought you had a good answer, you would have given it by now. But you don't think so -- and with ample reason.
Posted by: Bill Otis | Sep 6, 2023 4:37:12 PM
Try to keep up, Bill, as Master Tarls has asked me to call him Master Tarls (repeatedly). And I only use FFM when federalist expresses his feelings on off-topic maters rather than discussing the legal/policy matters raised by my post. Disappointingly, it has yet to dissuade him from feelings-laden comments on off-topic concerns. (I keep urging him to write up his views in a rigorous way under his actual name, but he shrinks away from that suggestion without stopping his off-topic expression of feelings.)
Meanwhile, if you want to continue with the diversions and shake-and-jive to avoid clarifying your views on cops lying and defense attorneys entering guilty pleas, so be it. But I know who is avoiding "giving the straight story" in favor of "a bunch of diversion." Your hypocrisy would be annoying if it was not so transparent and amusing.
I will not bother holding out answering your (diversionary) question if you do not want to answer mine. So, as for Frazier v. Cupp, I agree with the court's view that police misrepresentation should be relevant, but not alone dispositive, as to whether a confession is involuntary. But I also believe there should be statutory and constitutional limits on police lies, though I'd favor flexible rules and not rigid standards to regulate police conduct in this arena.
Posted by: Doug B | Sep 6, 2023 4:53:01 PM
