Plea Bargains And Ethics
 

Follow this closely please:

You are a defense attorney whose client is arrested for a felony. He tells you he did it and you think the proper punishment for the crime is ten years. A plea bargain is offerred by the prosecutors. They also believe tha fair sentence is ten years and that is their offer. Your client says five years, or no deal. The prosecutors tell him that if he doesn't take the deal they will try to put him away for twenty years. Your client still isn't swayed.

You now go to trial knowing that your client faces an "unfair" sentence if he is convicted. (I put unfair in quotes because some may claim he deserves the extra time for not cooperating) But your only hope of preventing this is to get him acquitted completely. And to do that you must assert thet he didn't do the crime at all. Even though you know he did. Ethical?

Re: Plea Bargains And Ethics
 

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And to do that you must assert thet he didn't do the crime at all. Even though you know he did. Ethical?

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Of course it's ethical. It is not a defense attorney's job to prove his client is innocent -- he is there to make sure the prosecuters do their job, if they wish to convict his client. That is, prove that his client is guilty beyond a reasonable doubt.

Re: Plea Bargains And Ethics
 

ANSWER 1.-

EV neutral.

+10 vs -10, we have been put in a position that Jesus (the ferguson kind) would be proud of. What do we feel is the chance of conviction if we say no?

I think if you change the prosecutors' threat to 21 or 19 years then we face a decision. Or am I missing the point?

ANSWER 2-

(As I have said previously.) It is ethical insofar as we did not set the framework within which we operate. As such we don't really have a decision at all. The decision has been made by the lawmakers, and we are simply following the rules of the game.

I will repeat a question here.

If you don't like this system, which one would you prefer? I cannot think of one that is not ridiculously corruptable.

Re: Plea Bargains And Ethics
 

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And to do that you must assert thet he didn't do the crime at all. Even though you know he did. Ethical?

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Of course it's ethical. It is not a defense attorney's job to prove his client is innocent -- he is there to make sure the prosecuters do their job, if they wish to convict his client. That is, prove that his client is guilty beyond a reasonable doubt.

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Except that it has been stated elswhere that if the client ADMITS the crime to the attorney it is unethical for him to flat out clim he didn't do it (and I believe he can get in trouble if he allows his client to say it on the stand (perjury))

Given that, is my scenario an exception?

Re: Plea Bargains And Ethics
 

This is why I could not be a lawyer. It's permittable to defend this man within our legal system, and can be presented as morally acceptable, but you're still trying to let a guilty criminal go free. It depends on the crime. As is, I think I need more information.

Questions I ask myself:
Is the law broken a just one to begin with?
Any unusual circumstances in the crime itself?
If I find that the man has committed an inexcusable crime, the next question is "can any good come out of this, besides money for myself?"

Side question: what % of guilty persons tell their lawyer/attorney about their guilt? Or plead innocent the whole time?

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Why the hell would you let your client admit guilt to you before trial?

Re: Plea Bargains And Ethics
 

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Why the hell would you let your client admit guilt to you before trial?

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as relevant to this discussion as what I had for breakfast.

Re: Plea Bargains And Ethics
 

OK, think I may have missed something.

What is my other option?

If I say I cannot defend this guy, doesn't that 'out' him a sguilty?

If so, then by not defending him I am basically finding him guilty of something I KNOW he HASN'T done.

Is that worse? I dunno?

I think it stil comes down to the Question I raised in point 2 of my first reply.

Re: Plea Bargains And Ethics
 

Unethical for me. Because if I felt his crime was serious enough to warrant ten years, I could not in good conscious act to get him off. That is, I would likely feel that twenty years, while an injustice, was a better outcome than him getting off without punishment.

Re: Plea Bargains And Ethics
 

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But your only hope of preventing this is to get him acquitted completely. And to do that you must assert thet he didn't do the crime at all. Even though you know he did. Ethical?


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As an officer of the court I don't think you can ethically make statements you know to be untrue. But there is no need for you to make the above assertion. You can assert that he is presumed innocent until proven guilty beyond a reasonable doubt. You can assert that the evidence to be presented by the prosecution does not meet that standard. And you can present whatever true evidence exists which you believe will cast further doubt. The evidence you present speaks for itself. This amounts to the adequate defense to which your client is entitled.

PairTheBoard

Re: Plea Bargains And Ethics
 

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Unethical for me. Because if I felt his crime was serious enough to warrant ten years, I could not in good conscious act to get him off. That is, I would likely feel that twenty years, while an injustice, was a better outcome than him getting off without punishment.

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This raises a few interesting thoughts for me.

Are we saying that the difference between 10y and 20y is less than the difference between 10y and 0y? My kneejerk reaction is to agree with you.

Also, does anything change if we alter the defendants age? 20YO man vs 55YO man?

How about how we gauge his likeliness to reoffend?

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Also, does anything change if we alter the defendants age? 20YO man vs 55YO man?

How about how we gauge his likeliness to reoffend?


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I think these are both important and need to be applied for a general "read" on the individual. In very specific circumstances if I "read" the person as a good-natured person, I might be inclined to defend him: young kind, marijuana dealing or maybe some kinds of hallucinogens, with an otherwise good head on his shoulders. In something like 95%+ of the cases I'm going to think it's unethical to defend the person, but there will be outliers whom I feel differently about.

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If so, then by not defending him I am basically finding him guilty of something I KNOW he HASN'T done.

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This is a minor concern, but has impact in my decision to defend a very small % of these cases.

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Can i assume that a crime that "deserves" 10 years is a different crime than one that "deserves" 20?

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The defense attorney should drop the case because he cannot reach an agreement on the goal of their defensive strategy in this case, thereby avoiding any ethical problems. He may lose a customer that way, but he will certainly sleep better.

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It would be unethical for the defense attorney, having accepted the job , not to provide the best defense possible. Although he thinks the best defense is for his client to accept the plea bargain, if his client refuses, he must attempt, to the best of his legal ability, to gain acquital. This is why defense attorneys often gain acquitals based on legal "technicalities," although they're certain their client is guilty.

The defense attorney cannot "get into trouble" over what his client says under oath. He's not the one committing perjury.

Re: Plea Bargains And Ethics
 

From a logical standpoint:

If this attorney cannot continue in this case due to his ethics, and all other attorneys have the same "admirable" ethics, then this client cannot be represented properly and the justice system has failed.

If this attorney does represent his client but cannot fully carry out his duties as a criminal defense lawyer, and all other attorneys would have the same inabilities, then the justice system has failed.

From a philosohical standpoint:

This attorney is representing more than his client. He is representing and defending the integrity of the system of justice and democracy in general. Who is so above this system as to be able to determine, before trial, who should be defended and who should not? Is that not declaring guilt before the trial?

So what about your question of ethics regarding an attorney asserting his client didn't do the crime when in fact the client had confessed or admitted it to this attorney? Well, I would look at this differently than "asserting" innocence. It should be considered more a case of defending democracy, procedure and the frew way of life. That attorney is the the make sure that the state has followed all procedures, dealt with all evidence properly and presented a case that a jury feels shows guilt beyond a reasonable doubt.

If that attorney was not there to do his job or did his job half-heartedly due to his own "ethic", then justice surely would not be served. The state could just it's "evidence" and with no defence march the guilty bastard straight to prison.


Side note: Plenty of people confess or admit to crimes they didn't commit for reasons like protecting a loved one or just being mentally unstable. If we simply declared everyone who confessed guilty and put them away, we would likely be allowing the real criminal to be free.

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So what you are saying, pants, is that it is the job of the prosecution to try the defendant. The job of the defence however, is to try the prosecution? I like it. And it does allow us to balance our moral standpoint.

Also, Doug, you wrote - "Can i assume that a crime that "deserves" 10 years is a different crime than one that "deserves" 20? "

Yes tou can. You can also assume that it is different than one that deserves an aquital, and therin lies the dilema. The deserved penalty is not on offer in this hypothetical scenario.

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I believe this is why good defense attorneys don't ask and wouldn't want to know about actual guilt or innocence. This way...

The attorney can reason "if" his client is guilty 10 years is a proper sentence. He can then negotiate a plea bargain however, if his client refuses it and now the prosecuter demands an unreasonable sentence, the defence attorney is within his ethical rights to get his client acquitted of all charges.

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Unethical for me. Because if I felt his crime was serious enough to warrant ten years, I could not in good conscious act to get him off. That is, I would likely feel that twenty years, while an injustice, was a better outcome than him getting off without punishment.

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I thought this was a good response.

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The attorney can reason "if" his client is guilty 10 years is a proper sentence.

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We could sure cut down a lot of costs if we just allowed the defense attorney to decide the guilt/innocence/punishment of their client.
I prefer a system where it's a group effort. One not unlike the current system where the defense attorney advises and represents his client and other party's represent the 'victim'. That gets us away from the Hatfield and McCoy approach of other cultures, where the families of the victims decide the punishment and there is no impartial evidence evaluation.
DS's hotel room settlement of poker cheats is a form of the other cultures approach, and it is a quick, efficient method, it just lacks 'fairness' in the 'equal treatment' concept we have. Justice in those cases very much depends on who knocks on your door, which is what western justice systems try to avoid ( as well as being a counter to government heavyhandedness ... such as the Duke rape case illustrates).

luckyme

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He tells you he did it

If you are worth more than squat as a defense attorney, this never happens. The first thing you say to your client is, "If you did it, don't tell me."

Re: Plea Bargains And Ethics
 

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He tells you he did it

If you are worth more than squat as a defense attorney, this never happens. The first thing you say to your client is, "If you did it, don't tell me."

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I had a bacon and egg sandwich today.

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You are a defense attorney...

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...Ethical?

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Trick questions are bad for the digestion.