UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruining their meanings, and I apologize about that.
This post has been modified in response to Rick’s comment below.
esterday brought another interesting post from Scott Greenfield’s Simple Justice. He had been made aware of a blog by a new law school graduate with hopes of entering the world of criminal defense. The author monologued about the moral dilemma a defense attorney has when representing a “guilty-as-charged” client. Her ultimate answer to it was that a defense attorney has a duty to tell her client’s story in order to achieve a fair outcome.
Scott, lodged in a lesson about the dangers of blogging (Loose blog posts Sink egos, or something of the sort), explained that there is no moral dilemma. A defense attorney is there to beat the prosecution and win freedom for his client. It is, after all, an adversarial system. (Disclaimer: This is my summary. Read his comment.)
That was yesterday.
Today I found that Rick Horowitz wrote in response to these posts. One of Rick’s points is that a fundamental principle of American Justice is that a defendant is presumed innocent until the prosecution has proved beyond a reasonable doubt that the defendant is guilty. There should never be a moral dilemma, since a defense attorney is merely maintaining the existing, fundamental, presumption until if — despite his best efforts — the prosecution wins and proves beyond a reasonable doubt that the presumption was incorrect. The presumption was never improper, but it may turn out to be inaccurate. (Disclaimer: This is my summary. Read his post.)
Both Scott and Rick point out that telling a client’s story is not integral to the job of a defense attorney. Rick even mentions that the presumption of innocence exists without the defendant saying anything at all and in some cases that may be the best route to defending a client. In other cases, telling the client’s story may be part of the defense. My real concern was with myself; when I read the instigating blog post, I felt myself nodding in agreement. “Why yes,” my unconscious murmured, “what else is a defense attorney to do?” I had asked Scott to give his explanation, both on twitter and in his comments, because I wasn’t clear exactly where the original author had gone wrong.
I think I finally figured it out. While in Law School (which I am), taking CrimLaw (which I did), the students read a multitude of cases and opinions. I think it’s safe to say that almost every last one is an Appellate Opinion. What is the big difference between Appellate and Trial Court opinions? The facts.
We law students are exposed to criminal law with the facts laid out before us. We have a bird’s eye view on the crime, what happened and whodunit. This almost always plays out when the class discusses the death penalty, and the point made when discussing death penalties is that, when there’s nothing left to do in defense of the client, you tell his story in the hopes of dissuading the jury from handing down the death penalty.
I know, I’m highlighting yet another disconnect between law school and the practice of law. Nothing novel or exciting. Just another reason for me to sigh heavily when I think of my student debt.
November 23rd, 2009
by Tweets that mention Circumlocutions » Realities of Criminal Defense -- Topsy.com
[…] This post was mentioned on Twitter by Moshe Glickman, Edward Wiest. Edward Wiest said: RT @mglickman New post by me. Based on @scottgreenfield and @rickhorowitz posts on the subject http://bit.ly/77lSc9 He gets it. […]
November 23rd, 2009
by Rick Horowitz
Since your summaries of both Scott’s articles and mine are highly inaccurate, I first thank you for adding the links and, second, hope any readers you have will use them to read what we said.
In my own post, among other mistakes, your comment seems to state that I am wrong about what my job is and it appears you believe both that my job is to present “the client’s story” and that I will do this until, inevitably, I lose.
Except, as I noted in my post, the law does not require that I “tell the client’s story.” The most it requires is that I show that the prosecution’s story is wrong. (I may not even have to do that much.)
Another error in the summary above is that I did not speak of one fundamental of our system, but of two; both are equally important. This is not a huge misrepresentation; just because I talk about two, doesn’t mean you have to say I did. But since you also misrepresented what I said about the point you did address, it makes me wonder how well you read the article.
Finally, I’ve handled more appeals than trials. (When I was a student, I handled the appellate work for a criminal law specialist and did the oral argument in the Fifth Appellate District Court in our state.) I find the comment you make about appellate opinions incomprehensible. What does “when there’s nothing left to plead” even mean?
The job of a defense attorney does not change just because it is a death case. (I’ve been involved in two so far; one while still a student, where I successfully performed my job of keeping out prejudicial evidence. Neither case involved “telling the client’s story.”)
Certainly, if (IF, not WHEN) you lose the guilt phase of the death case then your job switches to telling the client’s story in an effort to convince the jury, which has now convicted the client, not to hand down a death penalty. That story is not a story to counter the claim that he committed the crime, though. It is to explain why, even though the client committed the crime, he should not die.
There will be times in defending against guilt when “telling the client’s story” is the best way to show that the prosecution’s story is incorrect. That does not change “the job” of the attorney. The job of the attorney remains this: to force the prosecution to prove, beyond a reasonable doubt, that the accused person is guilty as charged. If the attorney is successful at that, he will have performed his duties, even if he never tells the client’s story. Even IF (not, as you seem to indicate is inevitable, WHEN) he loses.
November 23rd, 2009
by mglickman
The Author
I knew I should have spent more time on the phrasing.
I was trying my hardest to say that your post turned the light switch on in my mind why I automatically agreed with the whole “telling a story” as opposed instantly picking up on the larger and more fundamental parts of defense attorney’s job.
What obviously did not communicate at all, but that I was trying to say, is that Crim Law (at least my experience in it) spends a lot of time discussing the death penalty, and the idea of telling a story to convince the jury not to hand down a death sentence. That was what I was referring to with the phrase “when there’s nothing to plead”. I should not have used a term-of-art in a throwaway phrase, sorry.
I know I found it very easy to make the leap from convincing a jury not to hand down the death penalty to a convicted appellant to telling the story of a defendant to achieve a fair outcome. That was my point: the intellectual exercises we did in crim law primed my view of the defense system, to focus on equity over exculpation.
I couldn’t have intended a more opposite meaning than what you read in my post, and I hope this comment (while probably as poorly written as the original post) explains that.
November 23rd, 2009
by Rick Horowitz
Ah! Well, as you apparently know, that makes more sense.
Thanks for clarifying. And I’m glad my post turned on the light without generating (I hope!) too much heat!