"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, September 08, 2006

I Believe in One PD, the Lawyer Almighty...

This, from what I glean, is the "Public Defender's Creed:"
I am a public defender. I am the guardian of the presumption of innocence, due process, and fair trial. To me is entrusted the preservation of those sacred principles. I will promulgate them with courtesy and respect but not with obsequiousness and not with fear for I am partisan; I am counsel for the defense. Let none who oppose me forget that with every fiber of my being I will fight for my clients. My clients are the indigent accused. They are the lonely, the friendless. There is no one to speak for them but me. My voice will be raised in their defense. I will resolve all doubt in their favor. This will be my credo; this and the Golden Rule. I will seek acclaim and approval only from my own conscience. And if upon my death there are a few lonely people who have benefited, my efforts will not have been in vain."
(Per Skelly at Arbitrary and Capricious). Where to start?

First, does it strike anyone as slightly exaggerated to claim that defense lawyers are the guardians of due process and a fair trial? The courts and the prosecution have no stake in the process?

It is simply an outright falsehood that defense lawyers are "entrusted" with preservation of these guarantees. The hint that they are not entrusted with being guardians of a fair trial and due process is given in the next line, where it is acknowledged that defense attorneys are "partisan. [They are] counsel for the defense." Then those who "oppose" these lawyers are admonished to remember that "with every fiber of my being I will fight for my clients."

In fact, as I have mentioned here before, the way our system works is that it is “the duty of the prosecutor [...] to seek justice” while the defense attorneys duty is to represent his client zealously within the law. The prosecutor is in fact the guardian of a fair trial and due process, since his sole duty is to seek justice, not merely to convict. The defense attorney has no such obligation to seek justice. His obligation is to zealously represent his client without breaking the law. So to the extent there is a conflict between due process and a a fair trial and zealous representation, the defender has to abide by the duty to zealously represent, even if the other values of fair trial and due process are sacrificed. How does this work in practice?

Say the government's witness, who is the client's girlfriend, has sworn out an assault and battery warrant against the client. The defense attorney interviews the girlfriend and she confirms the accuracy of the complaint she swore out against the client. The attorney reminds her that the client loves her and if he goes to jail their children will suffer because he's the primary breadwinner. He tells her that she must testify truthfully, but if she should not remember the incident clearly when the case is tried, and there is no other evidence, the charge will probably be dismissed. At trial, she "can't remember" what happened and the client is acquitted.

Has the defense attorney broken any law or other ethical rule? He came up to the line but did not cross it, in my view. He zealously represented his client. Did he advance the concept of a fair trial (which means a fair trial for both the government and the defense)? Clearly not, what he did was plant a seed that bore fruit because his primary interest was not fairness, but getting his client acquitted. Examples such as this are legion.

Such is the devotion of the defense lawyer to his client that he will forget about the due process, fair trial stuff, which establishes a burden of proof beyond a reasonable doubt, and instead will, in the words of the Creed, resolve "all doubt in [the client's] favor." So whatever defense the client tells the attorney he must lay aside his doubts and accept the client's story. Never mind the black eye, the genital trauma, the lack of prior relationship, the sex was consensual! The defense lawyer (if he can't talk his client out of such a stupid story) has to present the story at trial; according to this Creed, he also has to check in his common sense at the door and really believe the guy!

Lastly, and very tellingly, the defense lawyer's creed sets up his own private conscience as his sole guide: no ethical rule, no rule of court, no law, can stand athwart the path of the righteous lawyer's conscience and tell him "no, you cannot act this way or that way." News flash: no one's conscience can be the absolute guide to the propriety of their conduct, and if the conduct violates some clearly established norm, it's probably a safe bet that the person needs to reformulate his conscience. In any case, if a defense lawyer wants to keep his law license, he had better heed the ethical rules and the law more than his conscience.

Rather than a manifesto of self-righteousness, I would imagine a lawyer trying to do the right thing would simply acknowledge that he has a duty of zealous representation, but he will not believe whatever baloney his client wants to serve up, he will not view himself as the uber-guardian of the entire justice system, he will not allow his private conscience to trump his legal, moral, and ethical duties, and he will understand that the prosecutor is enjoined to seek justice, not merely convict, and hence not view him merely as the client's enemy.

Too many "true believers" who ascribe to a Creed such as this one sacrifice their client's best interest (by perhaps not seeking, or turning down, a plea offer) so they can crusade against some perceived injustice, using the client as a pawn for their personal political philosophy. The lawyer goes home at night; the client goes to jail.


Anonymous said...

aren't you cute? you have never been a public defender. and if you think that prosecutors defend the rights of the accused, maybe you aren't paying enough attention.

every case in which i ever got an offer, my client heard about the offer and my opinons. if there was an offer and the case went to trial, the client -- not me, the client -- declined the offer. of course, some cases just don't get offers.

and some of the declined offers never went to trial because the state had nothing. zip. the last homicide case i had at the trial level, the prosecutor's offers and threats were all over the board -- probation if he pleads, maybe the death penalty if he doesn't. the case was dismissed by the prosecutor's office after the trial deputy lied about having a new witness, in an effort to force a plea.

there are no deals in post-conviction, at least in my jurisdiction. doesn't matter how unfair the trial was -- no deals is the longstanding unwritten policy. so tell me again how prosecutors protect the rights of defendants?

Tom McKenna said...

A mite sensitive, aren't we? I notice you do not attempt to refute the main thrust of my argument, which is that a defense lawyer's duty is to zealously represent his client. It is not to ensure justice is done or that due process is protected. Sometimes those interests coincide, sometimes they do not.

Again, a fair trial doesn't just mean a fair trial for the defendant; it means a fair trial for the government too. Don't tell me the defense bar is concerned about ensuring the government a fair trial. But ethically, the government must concern itself with a fair trial for the defendant.

Who is, then, according to the ethical canons, entrusted with ensuring a fair trial and due process? Let's say it all together: the prosecutor.

123txpublicdefender123 said...

Tom, I think you are missing the point of the creed. And that is that if we, as public defenders, don't stand up and advocate for the rights of the accused--their rights to due process, to counsel, to a fair trial--then these rights are meaningless. Of course, it is also the duty of the judge to do what he or she can to ensure a fair trial, but if the defense attorney doesn't object, what is the judge to do? (I have read enough appellate court opinions about waived error to know the answer, and I'm sure you have, too.) And I am mindful of the prosecutor's duty to "seek justice," but even you, Tom, would agree that that duty does not include the duty to enforce the defendant's due process rights. You are certainly not going to object to your own evidence or arguments or file your own motion to supress on behalf of the defendant.

Ours is an adversary system, and it works at its very best, in my opinion, when you have a prosecutor who is zelously prosecuting, while also upholding his oath to seek justice; when you have a judge who fulfills her oath to uphold the law and the constitutions of the state and the nation; and when a defense attorney is zealously representing her client within the bounds of the ethical rules and the law.

The creed is really something public defenders use for inspiration--to remind ourselves that our job is not just about that one case or one client. But that only by fulfilling out duties to zealously represent our clients will the system that is designed to punish the guilty while protecting the innocent truly work that way. As I'm sure you can understand, this is not easy work. We sometimes must advocate on behalf of people who have done things that are disgusting, cruel, heinous, and worthy of our own personal condemnation. But, we do it because we know that we must in order for the system to work for everyone. Of course, it is an ideal. It sounds high and mighty. But, sometimes idealism and high and mighty proclamations are what you need to inspire you through the rough and tumble world that we do each and every day.

dtarrell said...

I admire the fact that you realize your role and you state it correctly. What, however, do you make of the story of a prosecutor who investigates the veracity of a police officer's sworn affidavit, finds it to be a lie and thus desires to dismiss the case based on a belief in justice?

In the world you describe and that the law truly seeks, all is well and good and the story ends with the justice-seeking prosecutor getting a pat on the back from his colleagues and his supervisor.

But that's not the way it went down as the prosecutor was demoted to an "outlying division" and then fired after he complained to his colleagues about it.

I admire this prosecutor just as I admire your correct statement of the role of the parties in court, but my experience tells me when prosecutors try to carry out this role, they end up getting demoted, and called "defense attorneys" when they act honorably as this prosecutor did.

this particular prosecutor lost his case in the Supreme Court and the defendant is still in jail, convicted of a crime even after the police stated they followed tire tracks to his house and the prosecutor discovered that the road was paved and thus difficult for even the most experienced officers to follow tire tracks on.

I'm glad you see things this way, but I'm curious about how the rubber hits the road when you try to carry out this role. Doesn't the chief of police just call your boss and tell him or her for you to forget what theory you learned in law school and get back to putting criminals behind bars, no questions asked?

Nice theory, but does it honestly occur in practice?

dtarrell said...

Sorry, forgot to mention the case I was referring to. It's Garcetti v. Ceballos. here's a link...


Anonymous said...

Prosecutor's ARE the public defenders. They are officers of the court and ministers of justice.

PD's serve only one purpose--protect their client. Prosecutor's serve a greater goal, protecting everyone.

Anonymous said...

I would argue that PD's believe that they are protecting more than simply their clients. They are making sure that Prosecutors and Officers do not step over the line in their goal to serve the public. When a prosecutor or officer is found to be in the wrong it sets boundries that pertain to more than just the PD's client. I would argue that most PD's feel they can do their job because they are doing more that getting their jerk of a client off.

Sharon said...

Anyone who says that a public defender is only serving the interests of his clients is mistaken about what a public defender does. Anonymous above me has the right idea.

Everytime a public defender wins a motion to suppress or motion to dismiss for facial insufficiency or any other type of motion or hearing, it's a reminder to the prosecution and to the officers to get their job done right next time around.

It doesn't matter if the client is guilty or not guilty in the instant case, it is the fight for the rights we are ALL afforded. Some people forget that we are all humans and are all afforded the same rights, regardless of what wrongs we have committed. After all, no one is truly innocent, or else it wouldn't be "guilty" and "not guilty" but "guilty" and "innocent" verdicts.

If there were no public defenders zealously defending their clients this time around, who would be there when the prosecution, officers and government in general begin overstepping their boundaries for everything?

People are so quick to put down what public defenders do and say that their job is only admirable when they protect the innocent, but each time they protect someone who is truly 100% guilty of the crime they commit, but they are able to get them off "on a technicality" (that technicality being the error of the prosecution or the officers), they are protecting all of society, all those "innocents" as well as those "guilty" of crimes, from the arbitrary removal of all rights afforded to us.

Public defenders protect society just as much as prosecutors do, just differently. Public defenders just protect individuals civil liberties and rights, even all those they do not currently represent.

Anonymous said...

Wow. Did you just get out of law school???

You would be correct to say that a prosecutor's job is SUPPOSED to be a seeker of truth. While there are honorable prosecutors out there, the reality is that most prosecution offices are statistics driven. This is also true for most police departments. It's not that prosecutors are bad people (generally), it's that they are forced to use their state's wealth and resources to pummel poor and middle class defendants alike.

People like you love to sit atop your high moral horse and look down on the commoners as their rights and freedom get trampled on by fear and ignorance. As if you have never have nor ever will do anything wrong. Meanwhile, the same states that use the above mentioned resources are going bankrupt due to the high cost of incarceration.

This vicious cycle of power that is wielded by the mindless majority has devastating consequences for communities, families, and individuals. Of course people like you tend to turn a blind eye on the misfortunes of others.