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.)
**
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.
**
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 5th
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.
**
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.)
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