Defending the indefensible
June 29, 2014 9:24 PM   Subscribe

Fascinating. It's important that everyone, no matter how reprehensible they may be (or, if guilty, how reprehensible the thing they did is), get's the best defense they can. A solid defense of every case is the only tool we have to ensure the courts remain impartial and the police/prosecutors honest.

That's the theory, anyway, not necessarily reality these days. But we need to do what we can.
posted by maxwelton at 10:02 PM on June 29, 2014 [10 favorites]

I usually have some emotional engagement with clients, but Ted Bundy was a perfect example of someone born evil. I had no compassion for him. But I did want to save him from the death penalty.
This stood out at me. A lot of people who are against the death penalty will have second thoughts if they feel no compassion for the defendant. I admire this lawyer's commitment to that belief. He thought Ted Bundy was evil, had no compassion, but still was willing to defend him from the death penalty.
posted by Kutsuwamushi at 2:02 AM on June 30, 2014 [11 favorites]

ddd, what do you mean by that? Because we take the "right to an attorney" thing pretty seriously in criminal cases.
posted by Punkey at 3:00 AM on June 30, 2014 [3 favorites]

Interesting, if short, piece.

Here in Norway our home-grown terrorist and mass murderer had Geir Lippestad as his representative. Mr. Lippestad engaged with the media both during and after the trial, and handled the whole thing very well, highlighting the moral and principal questions the trial brought up. Personally I became quite proud of my countrymen when it became clear the the July 22nd massacre did not increase support for bringing back the death penalty.

I had a go at finding an English interview with Mr. Lippestad, but couldn't unearth anything of substance.
posted by Harald74 at 3:28 AM on June 30, 2014 [14 favorites]

Everybody hates criminal defense attorneys until they need one
posted by Renoroc at 4:24 AM on June 30, 2014 [6 favorites]

I won't go in to any details for obvious reasons, but I've represented a few murderers in my work. The one that sticks in my mind was a guy who was facing his second murder conviction. He'd murdered a woman once before, served a lengthy sentence, and then committed a second murder in eerily similar circumstances to the first.

He was the strangest mixture of ignorance and insight. He knew that there was something deeply wrong with himself, but at the same time be was kind and generous and empathetic.

He was sentenced to life imprisonment without parole, an unusually harsh sentence in my jurisdiction for someone who pleaded guilty at an early opportunity. After he was sentenced, I went and spoke to him in the cells. I was devastated. I started to try and explain the sentence and the judge's reasoning to him, and as I did so, my voice faltered. He put his hand on the glass partition between us and said 'Tim, don't be so hard on yourself. You did everything you could. You've been great. I'm not upset. I'm just going to have to come to terms with the fact that... maybe... maybe this is actually what I deserve. Are you going to be OK?'

There are people in this world who do monstrous things. But that doesn't necessarily make them monsters. There are monsters out there, but there are also a lot of otherwise ordinary people who do horrible things.
posted by tim_in_oz at 4:25 AM on June 30, 2014 [58 favorites]

On another note it continues to astound me that the US doesn't enforce availability of lawyers regardless of the merits of the case or the grotesqueness of the defendant

Here in the UK that right is being massively cut-back by the UK governments cuts to legal aid. In essence, in a criminal trial, your choices will be:

- Plead guilty and plea bargain.
- Pay to defend yourself.
- Find a barrister/lawyer willing to do it for free.

... as I understand it.
posted by rolandroland at 5:13 AM on June 30, 2014

ddd, what do you mean by that? Because we take the "right to an attorney" thing pretty seriously in criminal cases.

"We" do a pretty good job of providing an overworked, massively underpaid public defender who's barely had time to review the broad elements of a case, certainly not to pursue the details in any meaningful respect, before launching into the plea bargaining that is one of their few options given massively limited resources. "We" do pretty well at checking the box that says "we provided an attorney" without actually providing the meaningful representation that you need to make an just adversarial legal process function.
posted by Tomorrowful at 5:58 AM on June 30, 2014 [6 favorites]

Thanks for posting this; I found it fascinating.
posted by Salamander at 6:00 AM on June 30, 2014 [1 favorite]

I don't get all the hand-wringing we give to defending the guilty. It would make sense if we spent just as much time hand-wringing prosecuting the innocent - but we don't do that.

Which is really, really odd considering we are supposed to maintain the assumption of innocence.
posted by Critical_Beatdown at 6:22 AM on June 30, 2014 [1 favorite]

I don't get all the hand-wringing we give to defending the guilty.

I do - if I were a lawyer tasked with freeing a person whom I was certain had committed murder, and would do it again given an opportunity, I could definitely see me doing a bit of hand wringing over it. And, if I was successful, I'm not certain how well I would hold together if my client did, in fact, repeat offend.

There are things about the various justice systems that could be fixed, but as with so many other issues, the existence of one problem does not negate or reduce the importance of others.
posted by Mooski at 6:38 AM on June 30, 2014

I agree with Salamander: thank you for posting. I spent several hours reading these links.

As a neuroscientist, I'm fascinated by what the heck goes wrong with these people. We know it is mainly frontal cortex, but beyond that...
posted by Punctual at 6:41 AM on June 30, 2014

The hand-wringing would make more sense if acquittals were not vanishingly rare. In any case, the job is to defend the constitutional rights of everyone, and to challenge the prosecution to make the best case possible within those strictures.

The right jury will convict a cabbage if it's seated in the defendant's chair at trial. And there's only so much a defense lawyer can do to ensure that such a jury doesn't get seated, or to point out that the defendant is a cabbage.
posted by allthinky at 7:51 AM on June 30, 2014 [7 favorites]

We know it is mainly frontal cortex, but beyond that...
posted by Punctual at 7:41 AM on June 30 [+] [!]

First of all, multo rispetto, or whatever, but surely it's more a software issue. These guys are all telling themselves stories. You'd think that anything anomalous in the brain would be an analog to the way a bit of code can over heat your processor.

Probably over simplifying your statement...
posted by Trochanter at 9:13 AM on June 30, 2014 [1 favorite]

A really good blog of a public defender is; of late, she hasn't been posting a lot and there's a fair bit of strictly personal information, but the posts she makes about her job are fantastic.

She deals with all of the issues brought up in this thread; defending the clearly guilty, overwork of PDs, and more.
posted by Ickster at 9:33 AM on June 30, 2014 [3 favorites]

The idea that the defense attorney's job is to try to achieve an acquittal is fairly facile. I held this belief until I befriended a criminal defense lawyer many years ago. She helped me to understand the job as Trochanter says above, "...the job is to defend the constitutional rights of everyone, and to challenge the prosecution to make the best case possible within those strictures."
posted by tippiedog at 12:56 PM on June 30, 2014 [1 favorite]

f I were a lawyer tasked with freeing a person whom I was certain had committed murder, and would do it again given an opportunity, I could definitely see me doing a bit of hand wringing over it

I actually used to know a lawyer who defended several such people. He restricted his work in such cases to very strictly making sure the cops and Crown had done their jobs without violating the Constitution. That was his job, not setting a murderer (in one case, of a child, including rape) free. He was always very careful to not present such an insufficient defence that his client would have grounds for appeal, or for him to receive censure from the bar, but he would never pull OJ Simpson trial-type shit like the dumb glove thing. He held the cops and the Crown's feet to the fire, but never tried introducing doubt, as far as I can recall him explaining how he could morally justify defending murderers and/or (serial, usually) rapists to me over dinner one night. "My job is to defend the Constitutional rights of my client. That's how I approach every case I take." (paraphrased from memory.)
posted by feckless fecal fear mongering at 2:24 PM on June 30, 2014 [1 favorite]

Yuck. Sorry, fffm, your friend should really not be a criminal defense attorney. Sounds like a worse enemy for the accused than the prosecutor, making sure he puts up enough of a defense to foreclose appeals, but not so much as to actually win. That's not how an adversarial system is supposed to work.
posted by bepe at 7:28 PM on June 30, 2014 [6 favorites]

I wouldn't call him my friend, he's just a lawyer I happened to know years ago--more like a friend of the family.

The adversarial system, as tippiedog said in the comment right above mine, is actually not intended to force murderers to go free; it's intended to force the government to make its case. Which is what he did.

As for 'should not be a criminal defence attorney,' he worked for Clayton Ruby, probably Canada's single most prominent criminal defence attorney (who has long since moved into only taking cases that touch constitutional issues). I trust his opinion of the person I knew--the lawyer that Ruby hired, the lawyer that would discuss his strategy on cases with Ruby--just a little more than yours.
posted by feckless fecal fear mongering at 7:50 AM on July 1, 2014

The adversarial system is intended to give an accused person a zealous advocate. Both sides argue the points as hard as they can, the jury sorts it out. And yeah, in some cases, a good defense advocate might result in someone guilty walking free. That's how the system is supposed to work! Better a thousand guilty men walk free, etc. etc.

As for your acquaintance, just think of it--some defendant hires a lawyer, thinks he's getting an advocate for his cause, but instead he's got a double agent working in secret to make the conviction stick! I don't care who he works for, that's terrible. Good for him that he's moved on from defense work. I'm not saying I like all of my clients, but by god I fight for them no matter what.
posted by bepe at 7:57 AM on July 1, 2014

Bepe, I don't think you actually read a single thing I wrote. For one, it's Ruby that's moved on from criminal defence, not the lawyer I used to know. For another, he does provide a zealous defence by forcing the Crown and the police to prove their case (that's where the burden actually lies in a courtroom; they must prove their case, the burden isn't on the defence to prove it wrong), and ensure that the Constitutional rights of his client(s) haven't been violated.

You know, the exact same thing at least two other people in this thread have said. The Mansons and Dahmers and Bundys and Jackals and so on of the world absolutely should never ever be set free. My acquaintance's moral stance was that he was there to ensure the Crown proved their case, and the cops didn't trample the Constitution. He was not there to gain acquittal for actually guilty people.

He was there to defend their rights.
posted by feckless fecal fear mongering at 12:57 PM on July 1, 2014

And again, see what tippiedog said directly above my first comment here.

You're wrong. Sorry. A zealous defence is not the same thing at all as getting a murderer free to walk out of the courtroom. Period.
posted by feckless fecal fear mongering at 12:59 PM on July 1, 2014

Well I guess we see things differently, but I will always think its a massive breach of duty for a defense lawyer to not actually try to win. Cold comfort for the defendant to know his "rights" were protected by a lawyer who's decided he doesn't deserve a total defense.
posted by bepe at 4:04 PM on July 1, 2014 [1 favorite]

Why should a defence lawyer try to get someone who is actually guilty set free, if the police and prosecution have done their jobs properly and legally?
posted by feckless fecal fear mongering at 6:11 PM on July 1, 2014

The verdict of the jury determines who is 'actually guilty' and who isn't. Any lawyer who expresses a view about their clients guilt and is prepared to act on that is arrogating the role of the jury to themselves. That's neither an ethical or a sustainable way to practice.
posted by tim_in_oz at 11:13 PM on July 1, 2014 [2 favorites]

Sorry, but (again) I'm going to take the opinion of one of the greatest lawyer's Canada's ever seen (and certainly our best Constitutional lawyer), who my acquaintance worked for, discussed defence strategy with, etc, over yours.

If your client has told you they are guilty of multiple murders, and they will kill again, how on earth is it ethical for the defence lawyer to do anything but simply ensure the prosecution has followed the rules?
posted by feckless fecal fear mongering at 7:54 AM on July 2, 2014

FFFM, you mightn't realise the significance of this, but you've shifted the facts a little with your last post. Initially, you responded to the proposition that counsel could be certain that their client had committed murder. That's a position of belief. You've now shifted the scenario to a situation where the client has instructed that they committed the crimes.

That's a complete game changer as far as the ethics of the situation go. I'd need to check the Bar rules, but I'm not sure that I would even be permitted to act on anything other than a guilty plea in that situation but yes, your friend is right insofar as - assuming he could act at all - he would be limited to putting the crown to their proof and would be unable to advance any substantive defence.

Perhaps that's what you meant all along, but omitting that piece of information in your earlier posts has had people assuming that your friend makes up his mind about the client's guilt and then chooses not to run potentially available defences.
posted by tim_in_oz at 2:12 PM on July 2, 2014

Sorry if I wasn't clear about that; I thought I had been. He never arrogated to himself the position of judge or jury; this was only where guilt was absolutely a known factor. Thus: zealously defend his clients' rights, not their guilt or innocence. In those situations. In all other situations where there was doubt, or the client had not admitted guilt to him specifically, his defence was as zealous across the board as one would expect of a top-flight lawyer.
posted by feckless fecal fear mongering at 2:47 PM on July 2, 2014

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