talk radio--legal ethics

[snakehead]

first I want to mention that while in la last week, I listened for a while to a talk show I had never heard before. his name sounded like tom like-us. I got a kick out of him, and especially his program slogan: men listen, pussies don't.

now on to the local talk in denver, by some guy who was replacing the regular host. I don't know who either one of them is, they just happened to follow tom martino. anyway, the subject was westerfield's lawyers.

the sentiment was that these guys are scum for defending westerfield. supposedly, they knew he was guilty because he tried to make a deal to avoid the death penalty by leading authorities to the body before the trial. since they knew he was guilty, how could they bust their butts to defend him?

while listening to this, I was thinking, isn't this what we want them to do? I always thought that's what our legal system is all about. everyone deserves a defense, no matter how heinous the crime he is accused of. with out that, the government could run over all of us.

I don't know about the legal ethics (oxymoron?) of defending someone you know is guilty. are the lawyers required to defend guilty people differently than others? and even if they suspect he is guilty, can they really know for sure? most defense attorneys know better than to ask their client if he did it or not.

there were also comparisons of this defense team to oj's. I couldn't follow this either, because in the oj trial we had a bungled investigation, an incompetent prosecution, a hollywood judge, and a bunch of peanut-brains on the jury. in that case, the defense was the only ones who did their job.

[HDPM]

Was the talk show host a lawyer? The only lawyer I know who does commentary for KOA would say hell yes defend the guy. (Pretty good lawyer if you ever hear him - Dan Caplis) But assuming the host was not a lawyer, the question is actually one without clear answers. A lot is left to the discretion of the defense lawyer. In this country, only the defendant can choose what plea to enter. He can obviously get advice, but if a defendant wants a trial he gets it. If his lawyer thinks he can beat the charge and the defendant wants to plead guilty, a guilty plea it is. Don't get me wrong, a lot of arm twisting goes on, but it is still up to the defendant. So lawyers are often stuck defending people they either know are guilty or at least have a really really good idea are guilty. So then the question is how far will you go? A lawyer does not have to call any witnesses other than the client. The defendant has the absolute right to testify or not. This basically means sometimes a defendant will commit perjury and the lawyer will know it. This can be a sticky situation and there are different ways to handle it, none of which are very good. But a lawyer should not call any other witness he knows is going to lie. Sometimes clients are pretty bummed when they are informed that their magic witness will not be testifying because it's all BS. But that call is left to the defense attorney usually.

Now to the big grey area. How far defense attorneys go in presenting a case is totally up to them. Do you do a BS cross examination and try to unfairly destroy and confuse the 8 year old witness or do you go easier hoping the jury won't hate you as much? That's up to the lawyer. Do you manufacture a bogus theory hoping to sell a juror with a 70 IQ or do you just challenge the state's evidence? The ethical rules for lawyers don't say you have to go to the extreme in defending someone, although some talk show lawyer pundits say you must. You have to provide a competent and reasonable defense after adequate preparation, but you don't have to sell the theory that a UFO came and aliens committed the crime, even if some jurors might just believe it. So there's no cut and dried answer. Read "Anatomy of A Murder" if you haven't. It's an excellent book, way better than Grisham's stuff. There's an artful client interview in there that some say crosses the line of ethical behavior and others don't. Jimmy Stewart did it pretty well in the movie. (One part of the movie that is better than the book is the critical moment in George C. Scott's cross examination.) A lot of lawyers do what the lawyer in the book did, but some other good ones won't.

Leading the cops to bodies is potentially one of the most delicate ethical areas for defense attorneys. If I'm the guy's lawyer I would do everything possible to get a deal done before my guy led cops to any bodies. If no deal was forthcoming, we'd be looking at defending the case. I'm not going to give the cops the body and still have my guy on the hook for death. That is incompetent IMO. (But every case is different, etc...disclaimer) And often, incompetent lawyering will be upheld on appeal. You might get sick at some of the idiocy that goes on.

BTW, which case was this? I have not been following it. Is it the one where bodies were all over the place, including my neck of the woods? Lawyers don't necessarily pay attention to all the cases out there. I can't keep them all straight anymore.

Sorry for the long answer, but there's no short easy one here. All the areas you bring up have killed forests being written about.

[andyfox]

I've always liked you, my friend, but anyone who likes Tom Leykis can't be all good. To steal a line from one of my favorite posters, I'd rather listen to the static between the stations.

On the other hand, I agree with your analysis of the OJ case 100%. Wasn't Kevin the floorman on that jury?

[snakehead]

this is the guy who took danielle van damme(sp) from her house in southern ca and murdered her. before he could make a deal on the body, it was found.

if you are the defendent's advocate in our adversarial system, aren't you obligated to provide him with the best defense possible? would it be malpractice if you didn't? if you suspect he is guilty, is that reason enough to roll over and let him be convicted? surely this stuff is covered in law school.

[John Cole]

HDPM,

Now I've got another book to read. Anatomy of a Murder has always been one of my favorite movies, directed, of course, by one of the true Hollywood greats, Otto Preminger, whose star, sadly, seems to be fading.

If I recall, the film hinges, in part, on the use of the word "panties," which, believe it or not, wouldn't have got by the censors in other films of that era. In a way, the insistence on the exact meanings of words, one of the themes of Anatomy, prefigures the Clinton flapdoodle over the use of the word "is." (BTW, one term for "is" when used to describe its syntactic function is "copula"; you can't make this stuff up.)

John

[HDPM]

The one time I was in England I decided to check out a trial at the Old Bailey to see how their system compared to ours. I went into a rape trial right when there was a discussion of the victim's undergarments, "knickers" in London. It was sort of interesting in that the questions and answers were more circumspect and literate than many such examinations I witnessed or conducted. The victim also got to hide behind a screen or something, which would never be allowed here. But the facts surrounding her knickers were important, although I cannot remember why.

[HDPM]

"if you suspect he is guilty, is that reason enough to roll over and let him be convicted? surely this stuff is covered in law school."

Yeah, it's covered in law school if you take the right classes, but I can tell you it is not as cut and dried as you might think. The short answer is that you never roll over, and you will have to defend people you know are guilty and do a good job, but there are a lot of gray areas. Here's one example I saw. You pretty much know your guy is guilty. You get a police report with a typo on a license plate number. So you run the plate number and find another citizen somewhere with a car that might come close to the description of your guy's car on a bad day. How far do you go falsely accusing the innocent citizen of a heinous crime to shift the blame from your guy? I don't know any easy answer, and no, I was not the lawyer who cobbled that defense together, although I worked with him and saw the case from up close. Different lawyers would handle it differently and would all be within the ethical rules. FWIW, the defendant in that case will never get out, so the whole idea didn't do any good but did manage to hurt some innocent dude.

[bernie]

id say i agree with 80-90% of what he has to say...

avid listener for about 6 years now....WOO HOO

[snakehead]

men listen--andy doesn't

[John Cole]

I don't agree with 80-90% of what I have to say. I've never heard the guy, but how can anyone agree that often with these types?

John