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Law Talk: Defending Guilty People Isn't Easy 
12th-Jul-2007 12:21 am
Reborn - Yamamoto CHIBITA
Law Talk
In summary: Defending Guilty People Isn't Easy, or, Why Life Is Not Like Phoenix Wright;

A Funny Thing I Found in Spam

I get spam for replica watches all the time, but this is new! *sparkles!* The problem is, throwing them all in jail only makes the prosecution happy, and it doesn't solve any problems in the long run. Also!

Why Defending Guilty People Isn't Easy

1. First, let's get the "moral reasons" out of the way. The most noise I've heard for the whole Why We Don't Like Lawyers debate (oh, trust me, I've heard most of the arguments, and mostly from my family) comes from, in descending order, You're all slimy creatures (the sibling), then, You defend guilty people. It's the second one I have the most problems with.

To be true, it probably comes from the fact that when I was young and impressionable and didn't know I was going to go to law school yet, I read an article I remember to this day, entitled Why I Defend Guilty People, written by a lawyer far more eminent and practiced than I am, and the main reason behind it was, Because sometimes they're innocent. And sometimes they are. The problem is proving it, really, because the criminal justice system is so weighted against the offender, and while I understand why it should be that way: the system's there to protect the innocent, but it doesn't mean that due process should get thrown out of the window. I honestly do believe that people are innocent until they're proven guilty, although that may not be the way things seem to get done sometimes, and in practice the principle really is more along the lines of Guilty Until Proven Innocent, but still.

The point is, everyone is entitled to legal representation (and I'm not making a point for lawyers here for the money, because most of the public defenders don't take any money from the people they're defending, they're paid by the state because a lot of people who need it the most can't pay for legal representation, and the system has got to recognise that fact). And even though in this country it's been decided that while an accused has a right to legal representation, he doesn't have a right to be told that he has a right to legal representation (we don't read the Miranda here, guys, different jurisdiction), they're still entitled to legal representation. Everyone who comes before the court should be entitled to have someone who knows the law to speak their case for them, someone who knows the system, someone who can represent them and their interests, because the judicial system was made to be formal and this is scary to people who are already scared and thrown into a system they never wanted to be in trouble with. I'm not saying that they're not guilty, but that even if they are guilty, they should have someone to look out for them, to make sure their case is being handled right. Even if a lawyer can't prove a client innocent, legal representation can make a difference in sentencing, and maybe it doesn't seem so to the outside world, but even one month less in prison means something to the defendant.

I don't know if I'd have thought this way before starting work, but I do now. I don't know if it's the effect of coming into courtrooms where they leave the doors to the room where the prisoners wait to come to trial open, so that the prisoners can look out and wave to their family and friends in the galley. This sounds incredibly cruel, perhaps, but I'd never seen prisoners up close before, I'd never seen people handcuffed in courtrooms before, and maybe it is because I am still young, but I couldn't help feeling for them. I know that a fair number of them (if not all of those I saw) were probably guilty, and that the handcuffs and the security, it's all there for a reason, and it's so that the people in the courtroom can do their business safely and without fearing assault. Still. Putting a human face on a defendant changes your perspective on what's going to happen to him and his family when he goes behind bars. I know I only think this way because I'm still young and the walls of informed impartiality aren't all the way up just yet, and also because I haven't been in practice long enough to get jaded. But for the moment, I still think this way.

2. And before I went off on that tangent, there are PRACTICAL REASONS why defendin guilty people isn't easy.

I'd say that when it comes to defending guilty people, it's not morality that's the biggest of your problems. If you don't take the case, someone else is going to have to take it, and if it's a case that's come to your firm: Too damn bad, someone is going to have to take it. And as junior lawyers, it's fairly likely that you'll get it, because, ONE, You need the experience - and while this can serve as a catch-all phrase for, TWO, So we can give you the work we don't want to do, it is also true that you need all the experience you can get, even if it is only to decide that it is an experience you'd rather not get at the end of it all.

The problem with people who are genuinely guilty is: they're not going to present like innocent people. The evidence is not going to help you get them off. (and not like that) You will be looking at absolutely overwhelming evidence screaming THIS GUY IS SO GUILTY, and it is so damn hard to put that aside and say I'm gonna do the best job I can. I say it's hard because it's not easy to give your all to something you don't believe in. And it's so easy for people to say Then just don't take the case. It is and it isn't that simple. Because if you don't do it - who else will? I'm not Atticus Finch, and I'm not going to pretend I am, and I don't think it was any easier on him, either, but still - it's not easy.

But sometimes, they aren't guilty. Sometimes the evidence seems to point all one way, but your guy is innocent. And while I must admit I am not a believer of the "Better ten guilty men go free than one innocent be wrongly convicted" philosophy, I have this (and probably most people do) absolute prohibition and complete sense of wrong about convicting an innocent person, even and especially when someone has to take the blame.

I'm not yet sure if time will give me the profound distaste for the practice of criminal litigation which Atticus Finch had, but even now, I can see how people get there.


And now for something completely different: I am not an Arashi fan, but my heavens, they make FUN icon material! (This reminds me, I still haven't done a proper Abyss icon post) This icon post is especially in honour for farfello, who was the FIRST to introduce me to Arashi videos. I don't yet know of this is going to be a wild-and-crazy fall-in-love obsession the way Abyss or even Blades of Glory was, but I do know that I can't stop making Arashi icons (they do the most priceless photoshoots ever), and I love their videos, whether they are dancing in top hats and tailcoats atop a subtle-as-a-jackhammer rainbow, making tempura out of marshmallows, strawberries and strawberry cake.

And actually, if anyone can and doesn't mind identifying who's turning up in the Arashi icons, I would greatly apprciate the help. ♥ Kaasan helped for these ♥ I have now, so I know those already.



Also, anyasy linked this amazing Balthier and Basch cosplay, as well as this Balthier and Fran cosplay. An amazingly good Fran, really, I can't believe anyone could have pulled off making all that armor and that costume quite as well as this cosplayer did. I'm just really pleased at the Balthier and Basch. Many thanks for the links! ♥
11th-Jul-2007 04:50 pm (UTC)
Yes, the "you defend guilty people" or "let guilty people go scot free" is the most often heard excuse given in scorn heaped upon the legal profession.

The thing is, what most may not realise is that lawyers are officers of the court (at least in Singapore). Lawyers can't lie to the court. They can't make up evidence. They don't take a shovel and help our clients dispose of the body in some isolated stretch of road. If the guy admits that he is guilty, lawyers are not allowed to plead that he is guilty and the most we can do is just mitigate. All lawyers can do is work within the system and laws to present the best case to the judge. It is up to the judge to then decide whether to rightly whack the offender with the law or set him free. (Of course, there may be exceptions in less than ethical lawyers... action have been taken against lawyers who were found lying to or misleading the court)

It's also rather hard for one to prejudge who is the "innocent" or "guilty" party. The client comes up to you with their side of the story, true or not, it's the only side you hear. It's always an intriguing experience reading family law cases because both sides sound utterly convincing, at least on paper. Of course it becomes a matter of the judge deciding who is lying. But how do lawyers know for sure that the client is truly innocent or a really glib liar? I think that even if the person is guilty, he does need a lawyer to help him with any sort of mitigation or at least ensure that there is due process and he is dealt fairly under the law.

And as a wise friend said to me (for those who believe there is God or karma or some kind of after life retribution), they may escape judgment on earth, but they can't escape judgment in heaven. ^____~
11th-Jul-2007 05:43 pm (UTC)
*hugs you so tightly!* Thank you so much for understanding - I can't help but think sometimes that maybe only fellow law students/pupils/trainee lawyers can genuinely understand and empathise with the predicament.

I mean, I totally understand why we get a bad rep, and I know that the profession has its fair share of unscrupulous individuals, but the kind of attitude people give the legal profession sometimes completely misses out on the good work that the profession does and can do. A lot of people have this misguided conception of what lawyers can do and do do, and I suspect a fair number of them get their ideas from the media. Or only remember the cases when really bad lawyering turns up. (And of course mostly the bad lawyers end up in the papers so people can remember them better)

That's true! It's so hard to judge who is the "innocent" party, especially when naturally both sides present the most convincing arguments for their case. And sometimes neither party is innocent. I really do wish that there was a universal truth-telling machine, it'd make the job of the courts so much easier.

*grin* A law school classmate once told me much the same thing. I suppose it's the only consolation there is if justice can't be found on earth. But what if (apologies, I don't mean to cast aspersions on faith or religion) there is no heaven, and what of the victim's/other party's family, on earth? I find it so hard to accept verdicts that don't go the way they should, but sometimes there genuinely is nothing that one can do about it. *wry smile* I wish the justice system was perfect. Even though I know it's impossible.
11th-Jul-2007 05:26 pm (UTC)
(Amazingly, the only two ffxii icons I have are this and another one with an angry Ashe going "I'll kill him dead", so you get this one, irrelevant as it is. xD) It's out of the ffxii vol.1 manga you gave me! ♥! I had to stop and !squee when I saw that you had an "arashi" tag and a "ffxii" tag in the same post. xDDDD

I agree about the Fran! O________o;; She did a bloody fantastic job with the hair *continues staring* And the Basch has veeeeeery prettie muscles :9 The Balthier I'm less fond of, mostly because the game version has kind of reached some Celestial Plane of Manliness for me. Don't you dare laugh.

My dear, it's now EXTREMELY obvious that you like Matsumoto Jun's looks, because he's in 6 of your 9 bases. xD All the icons with only one person in them are MatsuJun icons (you probably know that >D), the "Crazy" one is Aiba/Jun and the "bridges" one is Sho/Aiba (That one you should know too. It's the file name! :p)
11th-Jul-2007 05:36 pm (UTC)
omg I am meant to be working on my advocacy preparation due in... 7 hours, but I saw you commented and SO I HAD TO COMMENT TO YOU!! ♥

XDDDD!! I am very amused by your choice of FFXII icons! You must have picked them for the emotion they convey? Because I would have expected you to have Basch and Balthier and Fran icons to the MAX. ;) Oddly enough, the FFXII icons that have survived til now are the Balthier, Basch and Asche ... TYPO, I mean, Ashe, icons. I used to have Vaan and Penelo ones, as well. HEY. ;) Your FFXII icons are MY favourite characters and my icons are... largely your favourites! ;)

Eeee!! Thank you so much, I'm so glad you like the manga! ♥ I'm actually waiting for Volume 2 to come out! ♥

Pretty muscles? I must go back and take a SECOND LOOK. ;) I beam at your Celestial Plane of Manliness and hope it is not as confusing as Giruvegan, but I totally understand what you mean. *grin* I just emit hearts a lot at this Balthier because his costume is the best I've ever seen so far, his looks aren't that far off from the character, and he kind of reminds me of Edward Norton. and omg I would never dream of laughing!

XDDDDDDDDDDDDDDDDD I was about to make an observation that I seem to find Matsumoto Jun very iconable, but then I realised my icons speak for themselves. >D Whoops for not noticing the file name: I say that it was the ARASHI PRETTY that blinded me. XDDDD Thank you so much for helping me ID them! ;) XDDDDDD

I hope your trip there went fine and you are enjoying yourself? AND OH OH I HOPE GRADUATION WILL BE/IS/WAS FUN? ♥
11th-Jul-2007 05:45 pm (UTC)
Firstly, your layout amuses me XD!

Secondly, on the defending guilty people: When I was taking Crim Justice Studies last year, I felt like I learned alot about why it is so important that even the guilty have proper legal representation, because to deny them of that would be a far worse thing than them getting off IMO.

People tend to freak out when they hear that 'guilty' people are released, but they fail to recognize many times that there are often reasons for that. Things like botched investigations, false testimony, forced confessions, poor handling of evidence, insufficient evidence, ect.

The public doesn't want to hear that though. They want 'bad people' put away forever, but if they were in the position of being wrongly accused, they'd be damn glad those technicalities exist. >.>!
11th-Jul-2007 06:11 pm (UTC)
Oh, Arashi <3 I can't pick anyone out of an Arashi lineup save for Matsujun and maybe Aiba, but they're just so sparkly and pretty.

I like lawyers :D And I'm pretty much just repeating what everyone else has said, but a lot of time guilt and innocence aren't so clear-cut and there's always more than one side to every story, and I believe every defendant has the right, with the help of a lawyer, to give his/her account of things, and... basically, I just like lawyers.
11th-Jul-2007 09:07 pm (UTC)
Wow, you study LAW?! *amazed* You must be ridiculously smart. But um, I've never thought about lawyers that way--I'm pretty much neutral with them, and just admire them from afar for being so smart and such great heroes of justice. : D So this article was an eye-opener~thank you-!

Oh, Arashi. I've heard of that band several times, but have never listened to any of their songs--perhaps I should.

And yeah, those cosplay pictures were really good--Balthier was really awesome! The Fran one was good, too, I thought that her costume was really well done. xD
12th-Jul-2007 02:09 am (UTC) - You're my hero~ <3
I love, LOVE your law posts! I don't know what it is, but hearing you so fired up in them and passionate is inspiring. :D

Firstly, I must ask- what would YOU do if you were presented with a case where a person is truly guilty of a horrific crime (and while I do believe in innocent until proven guilty, there are a few that...cannot be denied)? I know someone will have to take it, but how would you handle it? Do you think you could push aside personal feelings or prejudice for it?

Also, what's your take on the death penalty (I'm not sure how your system rules on that)? I, personally, don't support it- but I cannot imagine the weight that must get put on some lawyers' shoulders when they are practically sending other people to their death should they win a case, in some instances.

I don't think I have...ever thought of a few things you have presented before. I know I am guilty of also accusing lawyers for being scumbags for defending criminals who are very obviously guilty of crimes. But, you're right, criminal or not- everyone is entitled to a lawyer and rights...and SOMEONE, unfortunately, must be the person to step up to the plate and take on a case no matter how guilty a person looks. It seems like a simple view that if anyone takes the time to ponder upon such a thing they could figure it out- but often times people overlook that and just think lawyers SIDE with the people they defend. :/
12th-Jul-2007 03:53 am (UTC)
*hugs* this is probably frightfully obvious, but to me, the legal system is about finding the best way through human checks and balances to get to a modicum of justice.

if you're innocent, and the system works to return you to some pristine happy state, yay and all the best!

but if you're guilty, what constitutes rightful punishment? just desserts for evil-doers are all fine and dandy, but you can't just whack a person in jail and throw away the key. i think the role of the lawyer here is to watch out for the client's rights so that his rights don't get trampled over in the rush to punish.

1 cents worth because it's thursday. XD

12th-Jul-2007 04:56 am (UTC)
This was a very interesting post :) I think everyone knows a story or two from the news about a court judgment that they thought was way too lenient, but I'm not sure that anyone's yet invented a better system. Good for you for your enthusiasm! You've chosen a challenging profession, so it looks like that'll come in handy. Good luck! :)

...I just can't imagine wearing Fran's costume. It looks way too painful o_0 They're both very well put together, though, wow.
12th-Jul-2007 09:39 am (UTC)
"But sometimes, they aren't guilty. Sometimes the evidence seems to point all one way, but your guy is innocent."

This reminds me of the film "The Shawshank Redemption".
12th-Jul-2007 12:42 pm (UTC)
and kudos to you, I hope you'll be a great criminal lawyer ^___^ because when I heard my nephew's tale on why he was missing since last December, I felt like choushindou-ing the entire Indonesian legal system.
13th-Jul-2007 07:42 pm (UTC)
whoa i haven't been on LJ so long
your layout changed!
it's so blue now

what's up with all the cute boys avatars XD
16th-Jul-2007 02:41 am (UTC) - The cosplays.
My God, those cosplays are awesome! Thanks for the link.

Even if Fran's cosplay sucked (which it doesn't), one has to respect a woman who can spend an entire freakin' day wearing 9cm. heels.
25th-Jul-2007 08:18 pm (UTC)
If your enthusiasm for defending the client depends at all on your own judgment as to whether the client is guilty or innocent, you shouldn't be doing criminal defense work. Judging the client is the court's role, not yours. The client needs an advocate who will speak just as zealously and work just as diligently on the case no matter how bad it looks.
26th-Jul-2007 12:33 pm (UTC)
Why hello there! *smiles* We haven't yet met (or at least, not to my recollection) but lovely to see you here! Just out of curiosity, might I ask how you found me? It's just that I rarely talk about law (and mostly only ever go on about fandom), and was just curious as how you came by.

I agree completely with you that judging the client is the court's role. Indeed, that's the way it should be. And I am completely with you on your view that the client needs a lawyer who'll argue his case to the best of his abilities. And this is so especially for criminal defendants - I empathised completely with this post of yours, and I regret to say that in my jurisdiction, our criminal discovery is in the same state as it is in yours.

Naturally, a lawyer should defend his or her client regardless of whether the client is guilty or innocent: a lawyer owes it to every defendant who comes before him, and I think (unless I am very much mistaken) that you are in agreement.

However, I do think that lawyers make their own judgements as to a client's guilt or innocence. I would even go so far as to say they must make their own judgements, because I think a client is best served by a lawyer who takes realistic view of their case, makes an accurate judgement as to the client's legal position, and act accordingly.

I think that laywers are capable of making their own judgements as to a client's guilt or innocence,
but that lawyers can and should separate their own judgements from their conduct of their client's defense.

I think it's perfectly possible to hold a personal opinion that a client is guilty, but defend him as though he is innocent. I'm a realist. I think that in a situation where a client is unmistakeably guilty, a lawyer does him no favours by blindly conducting a case as though he is innocent. Lawyers recognise and accept the limits of their case and the evidence before them, and move on, doing the best they can for the client in the circumstances. I do not know if you think otherwise, but this is my opinion.

I do think I'll need to qualify myself by saying that I am fairly new to the profession (indeed, I haven't been formally called to the bar yet, however many cases I've had practical experience with), and that these are my opinions at the moment. Doubtless several years in practice will change that, but I doubt practice will make me any more idealistic.

Thank you for sharing your ideas, and I do welcome your opinions, even if we may not agree entirely with each other on certain issues. ;)
26th-Jul-2007 03:54 pm (UTC)
I found your post on one of my periodic surveys of the public defender blogosphere. I think you were probably linked from either skellywright.blogspot.com or pdstuff.apublicdefender.com.

I can get on board with the realism thing. I agree that we owe it to our clients to realistically assess the case against them, and advise them appropriately. But, as John Blume (capital defender and director of the Cornell Death Penalty Project) is fond of saying, there's an ontological question and an epistemological question. That is, "is the client guilty" and "how do we know?" I'm more concerned with the second, because that's what matters in court.

It's so easy to assume that there exists a third-person-omniscient "truth about what happened" in a case, even when there so often is not. Different people experience the same event differently, and it's hard to say that one person's experience is more "true" than another. What I think is important to being a realistic defender, and what we owe to the client, is an opinion on what evidence is likely to come in against them, and what the factfinder is likely to decide. That's not necessarily the same as my opinion about the client's (legal or moral) guilt or innocence. Cf. the tax lawyers who write opinion letters advising their clients that they think their fancy inventive tax shelter complies with the Internal Revenue Code, even though any reasonable lawyer would probably predict that the IRS would shut them down as soon as they figure it out. You may honestly think the tax shelter is legal, but that doesn't mean the decider who matters will agree.

And I agree with your statement that "Lawyers recognise and accept the limits of their case and the evidence before them, and move on, doing the best they can for the client in the circumstances." On the other hand, I think it's important especially for public defenders and legal aid attorneys, that the client feels empowere during the process. I need my clients to know that I work for them, that I *represent* them, and that I am not just another cog in the machinery of the state, processing them with the same cruel disinterest as the person who performs the body cavity search at the jail.

What really got to me about your original post was the "because sometimes they're innocent" line--maybe it's not what you intended, but it came off sounding like "I only care about the innocent ones."
26th-Jul-2007 04:13 pm (UTC)
*beams!* Many thanks for the heads-up! And oh, my, I am deeply honoured: all of these blogs, including yours, are wonderful, very law-centric blogs. Thank you once again! The links are much appreciated, they look like the stuff of fascinating perusal!

What really got to me about your original post was the "because sometimes they're innocent" line--maybe it's not what you intended, but it came off sounding like "I only care about the innocent ones."
Oh! Thank you for telling me that - I didn't realise I'd come across that way. It couldn't be farther off from what I personally believe, so I thank you once again for sharing your take on it with me. I don't think any criminal lawyer should have any business caring only about the innocent ones - I don't think there'd be many criminal lawyers about in that situation! *grin*

What I think is important to being a realistic defender, and what we owe to the client, is an opinion on what evidence is likely to come in against them, and what the factfinder is likely to decide. That's not necessarily the same as my opinion about the client's (legal or moral) guilt or innocence.
Oh, yes! *beams* I couldn't agree more!

I do think that there is real truth: it's just that is no way to discover with absolute certainly the "truth about what happened". What troubles me about the legal system sometimes is that it cannot truly determine real guilt or innocence, say where the evidence is mainly circumstantial, or it's the one-person's-word-against-another situation.

And the unfortunate thing is, what the court decides to the best of its ability may not be the truth. A criminal lawyer I once worked with said that he'd defended and acquitted clients he was so certain were guilty, only to find several years later that they truly weren't guilty. And I think every criminal defender needs to remember that however bad it looks for his client, there truly is always a possibility that the client isn't guilty.

And even if the client seems completely guilty - sometimes I think that's when he needs a good lawyer most. There's always mitigation, or there could be a good reason why he did what he did.

I'm really impressed by the way you feel about your clients, and very glad to know you hold the opinions you have. I don't know if you've decided yet what route you will take when you become a lawyer, or even whether you intend to become a criminal defense lawyer, but if you should so choose, I would completely support your decision. Being a criminal defense lawyer (in my opinion) is one of the toughest and most needed roles in the entire justice system, and I think that if it is your path, there are many in the future who will be glad to have you on their side.
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