Justice?

I think this is a somewhat timely post, given the local brouhaha going on over at the Justice Building Blog, plus random comments conveyed to me via the PDs, plus stuff I’ve heard myself from various parties. Anyway, I’d like to write a bit about roles and justice – especially for those non-lawyers who read the blog.  And if a few of the confused lawyers (and such) read it, so much the better.

Unlike the UK, we have an adversarial system of representation. There’s certainly a number of historical reasons for that. Basically it means that each “side” in the courtroom is represented by an advocate whose job it is to “work” for that side, to speak for that side. Each side acts as a check on the other. In the context of civil litigation, this makes sense and is easy to conceptualize. In the context of criminality, it’s a bit harder given of the “sides” and the relative resources of each.

Let’s start with the defendant in a criminal case. The accused person has just one person advocating for them – that’s their attorney. The criminal defense attorney can certainly advise their client as to what they might like to do with their case, or what they should think about doing with their lives. (And believe me, nearly all of us, myself included, engage in these discussions with our clients.)

And yet from a systemic perspective, it’s unwise to give too much power to the criminal defense attorney because of the client’s basic dependency on the attorney. Think about it – do you want your freedom, liberty, criminal record, in the hands of a stranger who might be professionally tied into the courtroom by currying favor with a judge or appeasing the prosecution? A stranger who might personally disapprove of the choices you’re making, or the kind of life you’re living. No way! Instead  you’d absolutely want a zealous advocate who is going to help you meet your goal, be it getting out of jail, telling your story in front of a jury of your peers, or working to get you into a drug program.

Given this, certain basic decisions, including whether or not to testify, whether or not to accept a plea offer, and whether or not to keep on retaining their attorney, reside solely with the accused.  Further, these decisions are hard wired by certain ethical stipulations – for example, the defense attorney must always convey any plea offer to the client (although we will then certainly advise them as to whether or not it’s a good offer).

On the other hand, certain “strategic” decisions, such as whether/when to file any given motion remain with the defense attorney (although the client can, and often does, participate in making those decisions as well.)  The basic systemic tension is between allowing a client to direct what they ultimately want to do with a case and allowing their representative to effectively work for them by allowing some latitude to exercise their specialized training and understanding of the court.

Thus, it is ethically improper for a defense attorney to do certain things, including, obviously, sell out their client to the state because the defense attorney happens to think the client did the act they are being charged with. In fact, the defense attorney is very constrained – often you want to share information you think might be tactically helpful, but you can’t because the client has forbidden you to share it.

Basically, the defense attorney must zealously advocate for the accused and is constrained in ways that protect the client.

My personal judgment of the client’s activities and goals MUST be as irrelevant as I can possibly make them, insofar as they might color how I go about defending a case. There are also certain other basic ethical considerations a defense attorney must honor such as not lying to the court. (On the other hand we are often ethically forbidden to divulge certain matters to the court, because to do so would harm the client – in those situations the correct response is to say nothing, even when questioned by the court. The prosecution can supply information if they wish.)

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On the other hand, the opposing “side” is the State. The State is kind of a tricky concept. Basically, it’s “the people,” including the defense attorney and the accused.   (See how this gets murky?)

Representing the State are the prosecutors. They have lots of resources at their disposal, including the police. Think about that. Using these resources, they have the power to bring cases and to discharge cases, which is a tremendous responsibility. Unlike the defense, this responsibility is constrained not by a balance between the client’s wishes and the attorney’s skill, but by a mandate to do justice.

The reason that’s so is because the client, “the people,” are not a homogenous bunch.   A “victim” of a crime, who might feel horribly offended or violated, or completely amused and indifferent, might want one thing to occur. (The reason why I quote-mark “victim” is because some crimes, like selling paper flowers for a dollar at a bus-stop really seem to have no articulable “victim” who can stand before the court and say, “I am the victim of this crime, ladies and gentlemen of the Jury.”)  The politicians might want another which completely opposes the wishes of the “victim.” The general community the “victim” comes from might want a third. The accused’s general community might want a fourth. So on, so forth. It’s hard to say just who is a prosecutor’s client (because everyone really is), so prosecutors have to mediate between a number of competing interests.

Prosecutors have additional constraints. For example, besides simply not wasting tax money pursing frivolous cases (ahem, see flower-selling example above – yes, it’s a real case), the prosecutors have a general responsibility to not wrongfully convict someone on the basis of, for example, police testimony the prosecutor knows to be false. They also, as officers of the court, should not be eroding constitutional liberties by pushing cases that violate the basic constitutional rights of the accused. (Not that I’ve *ever* seen a prosecutor turn around, before a judge made a ruling, and say, “the officer clearly violated the accused rights – I’m dropping the case.” However, I did see a case where the prosecutor dismissed the case because the victim couldn’t identify the accused – a great example of the prosecution honoring their mandate to do justice.)

And that’s the basic lay of the land.  Defense is client focused and constrained via the client’s rights. Prosecution is “community” focused and has a mandate to balance how they go about things.

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However some people often forget this and get wound up in “Justice Being Done,” which is usually framed in some 1 in 10,000 situation where a factually guilty person goes free “via a technicality” and further burdens society by committing the same crime. The boogyman for this is not someone who is drinking in public every third week, but the serial-stranger-rapist, the random-targeting-child-molester, and the spree-killer. The basic emotional argument is “we have to tighten the rules before these people slip out and hurt you and yours.” You’ve heard it on TV. You’ll hear it again.

Let me tell you why it’s a problematic argument.

First, the criminal justice system processes a huge number of people. When we tighten “the rules” to catch the extreme case (assuming such a tightening would actually catch the extreme case), we affect all the non-extreme cases we see every day.

For example, there’s currently a county ordinance that makes it illegal for a registered sex offender to live within 2500 yards of a school, day care, or playground. While that “sounds fine” on the face of it, it means that sex offenders are only allowed to live in a few places in the county – including camping out in areas under highway interchanges. Plus, there are a number of sex offenders who, for instance, had fully consensual sexual contact (not even sex) with a 16 year old when they were 19.  Does it make sense to put all those people under bridges? Not really at all.  What about when that 19 year old is 65? Further, is there any evidence that such a law actually deters child molestation? Nope. Sad, but no.

I’d talk about criminal process rules being tightened, but it’s a bit technical. The result is still the same – every rolling back of a basic right, every exception that gets added on, erodes everyone’s rights.  The reason you might not see this yourself is addressed below.

Second, as mentioned, these “technicalities” are our basic rights. We need these rights to push back at a culture of presumptive illegality. Dear Reader, think about every time you’ve broken the law by rolling through a stop sign. Or perhaps you were .0001% over the limit (but were effectively unimpaired) when you drove back from the holiday party. Or you scalped a ticket. Or bought a scalped ticket. Or God forbid once smoked a cigarette as a 16yr old. Or a joint in college. Or drove somebody home who had a joint in their pocket. Or had a beer before you were 21. Or (believe it or not) co-habitated with someone you weren’t married to. (A client of mine was charged under this statute.) Or you littered. 

The point is that were the state to find every “factually guilty” person in the state, we’d probably all be doing some kind of time.

Instead the State routinely manages to convict impoverished ethnic minorities, with the occasional white homeless person thrown in.

(Let me tell you I see 0 university/college students in my courtroom – and not to generalize, but you’d think if the state were serious about drug use and underage drinking, they might once in awhile find a single college student who violated these laws. But somehow they just don’t.)

You figure it out.  You call it what you will. Personally, I call it racism.  But let’s not get so hung up on the label that we pretend the basic facts don’t exist. They do.

So to put this together, when we “tighten” things, we’re only tightening them for a certain subset of the population, even though, I guess, they’re technically “tightened” for all of us.

When the prosecutors rail that someone they “know” (l love that) is guilty has gotten out because the police violated their 5^th amendment rights, I just don’t know what to say.

Actually I do, but I’ll let you all figure out what to say for yourselves.

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In my opinion, too often prosecutors fail at their basic ethical duties. And if you think about it, were they to adhere to them, they’d only be brining clean, strong cases against defendants. Instead every time a defendant has a case dismissed via a motion, or through an MJOA, or a jury comes back quickly with a Not Guilty, that should tell you something about the quality of the case the prosecutor was brining against the defendant. Meaning, it was a bad one. And anecdotally, let me say that were police activities videotaped, I’m certain there would be far more cases getting dismissed, and we’d get much better police work, targeted at the most important criminal violations.

Lastly, I’d like to point out two additional things.

One – the defense loses. A lot. Jails are filling up at a record rate, and there just seems to be more and more crime. Usually in poor neighborhoods the condos are moving into.  (Snort.)  90% of these criminals seem to be either ethnic minorities, impoverished, or both. So don’t think people aren’t being locked up at a record rate, even with our still existent Constitutional rights, with all those “technicalities.”

Two – if every time the defense lost, the state put the same amount of money just spent toward providing schools, housing, jobs, health-care (including psychological services), and some culture to defray our hyper-materialistic, corporately focused, have/have-not society, well, let’s just say we might see some Actual Justice Being Done.  (I’d dearly love to be laid off due to lack of work. I so very dearly would.)