Kool-Aid drinker

Western Justice, self-proclaimed small town prosecutor, quotes Alan Dershowitz in asking whether criminal defense attorneys are “lie promoters“.

But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.

Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?

Several things struck me about this as problematic. First of all, it would indeed be an extremely rare circumstance in which the defendant actually admits that everything that is alleged is 100% true. There’s a reason for this and it’s not because defendants are liars, but because rarely is everything actually true.

The second, and more fundamental, problem is the abject failure to recognize the system that we have and the distinct roles that prosecutors and defense attorneys fill in that system.

Defense attorneys are not partners in this pursuit of justice – we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.

Yet another thing that bothers me is the holier-than-thou attitude, which I’ve written about several times. Prosecutors like to think of themselves are righteous, can-do-no-wrong proponents of some higher ideal. Yet, time and again, they will take as gospel the drivel spewed forth by cops in “police reports”, ignore blatant lies, “lose” exculpatory information, condone arm-twisting of witnesses and victims. Where is the righteous indignation then? Why no outcry? The hypocrisy is palpable.

If you’re looking for the truth, Mr. Prosecutor, start by asking yourself if you would file a substitute information on a lesser charge or dismiss them entirely if you have any doubt as to the veracity of the facts are reported by the police. And if you would, recognize that it is your job to do so and that you are in the minority. Just as the defense attorney who goes to trial with a client who has “admitted” guilt. And even then, recognize that both the rare prosecutor who does not drink the kool-aid and the defense attorney that goes to trial in those circumstances are obligated to do so. The burden is yours, not ours.

This is not some silly game. The very liberty of individuals hangs in the balance. What I know or do not know about my client’s guilt or innocence is irrelevant. What is relevant is whether you can prove that he is guilty.

In the real world, one would assume that if the facts are such that all the elements of the offense would be easily proven, and there is no dispute from the defense, then the case will be plea bargained. But remember that a bargain means give and take. If you make an offer that is essentially the same as what the defendant would get if he went to trial, there is no bargain. You are providing no incentive to avoid putting you to your burden.

Scott provides a fitting conclusion:

But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.

So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.

What say you, WJ?

17 thoughts on “Kool-Aid drinker

  1. Pingback: Appellate Law

  2. MissConductPDX

    “What is Truth?”, asked Pontius Pilate as he washed his hands.

    As a PD, I don’t deal with the truth. It is not my job to seek the truth, unless my client needs me to.

    Often times, my job is to sit back, cross my arms, look at the prosecutor, and say “oh yeah? I’d like to see you prove that.” (Figuratively sitting back, of course).

    That’s the way the system works, that’s the way the founding fathers wanted it, and that’s the way Scalia seems to think of it. That’s the way it should be.

  3. SPO

    If the defense attorney knows his client is guilty, it is a lie to offer alternative explanations to the jury. If he says that something else “could have” happened, when he knows that to be false, then I don’t see how there’s any other conclusion. I guess he could say “well, the evidence could lead to X conclusion”, that gets around the technical lie issue, but prosecutors should be allowed to point that out. I guess, at the end of the day, there is no constitutional right to have a lawyer mislead the jury in closing argument.

    By the way, this was a mini-controversy in the Danielle Van Dam case. Defense counsel knew full well Westerfield did it, yet argued to the jury that the couple’s swinger friends could have done it. Nice.

    1. Miranda

      I disagree that it is a lie. Putting aside the fundamental necessity in allowing defense counsel to make such an argument for our system to function properly, I don’t even think what defense attorneys do is a “lie.” You don’t hear defense attorneys personally vouching for a witness or a theory of the case. Instead, they may point out alternative theories. If evidence suggests that someone else committed the crime, or that the eyewitness was mistaken, or anything else tending to exculpate the defendant, pointing it out to the jury is not a lie. It’s truly a deficiency in the state’s case. Asking the jury to take notice of that when trying to determine if the state has proven its case beyond a reasonable doubt is not deceitful or dishonest in any way.

      1. Gideon Post author

        Or put another way, just because the client says it happened so doesn’t mean the State has proven (or can prove) that it did.

  4. SPO

    If you say “Such and such could have happened” when you know it didn’t, that’s a lie (and the “well, you never really know” argument has been well-blasted by now). Now, that may be tolerated as part of our system, but it’s a lie. And I suspect if push came to shove and some attorney got disciplined for it, I doubt that the Constitution would forbid the punishment. I agree that the line between pointing out the deficiencies in the State’s case and lying can sometimes be a close one, but Westerfield’s lawyers, when they said that the swinger friends “could have done it” out-and-out lied, because the swinger friends “could not have done it”.

    What defense attorneys need to argue is that saying “could have done it” really is saying that the evidence “does not eliminate the possibility of the alternative explanation”, and that the convoluted circumlocution is necessary. That’s not really persuasive. At the end of the day, if you have a kid and the cookies are missing from the cookie jar, and he says, “Well, Susie was here, and she could have taken them.” when it was the kid who did it, that’s a lie. How is the “swinger friends could have done it” argument any less of one?

    As for your point about prosecutors. Maybe you’re right that the ability to do what I call “lying” is a necessary weapon in your arsenal to equalize the playing field. I don’t know–I don’t practice criminal law.

  5. Mark

    I’m a prosecutor, and surely that’s where my bias lies. But at least I’m aware of it and actively try to account for it.

    I can’t speak for every prosecutor’s/DA’s/USA’s office in America, but in my office for every two police reports we charge, we deny charges on one. Stop and think about that ratio for a moment. This simple fact, in my mind, is a compelling response to the tone of challenge in your post. An innocent suspect’s best friend is me reading his police report. So, I think I do more than my share of searching for the truth, thank you very much. Perfect? Of course not. A lot closer than you’d be willing to admit? Absolutely. Feel free to take the credit when I don’t charge your potential client with a crime, but I’m the one who didn’t sign the warrant.

    True, some of what we don’t charge is b/c of what we know even a minimally competent defense attorney can do with it to create reasonable doubt. So in that respect, the defense bar plays an indispensible role in the criminal justice system. Please keep up the good work. The more good defense attorneys there are, the easier I find it to do my job. Not necessarily win more of my cases, but do my job. Unfortunately, my job remains quite difficult a lot of the time. And btw, a good defense attorney accepts the difference between “my guy is innocent” and “the prosecutor hasn’t carried his burden.” Those who don’t, and who come up with snarky equivalencies, could probably benefit from being a little more honest with themselves and the precise parameters of their very important job.

    But because I’m a biased prosecutor, I will say that there is really no way around the differences between “I seek to do justice and to incapacitate murderers and rapists and the like by putting them in prison where they can’t hurt you” and “I hold the prosecution to its burden.” There are things to be said by all sides about which, if either, is more important. But don’t mistakenly think they are the same. There is no getting around that people murder other people, and people rape people, and the society of which we are all a part has decided that those actual offenders need to be incapacitated. Admit it – you want me to do my job well. To me that includes only bringing cases when I know I can meet my burden.

    1. Gideon Post author


      Thanks for the comment. Taking what you say at face value, will you acknowledge that your view is in the minority?

  6. SPO

    Mark, what’s your view on a defense attorney knowing his client “did it” and arguing to a jury that “someone else could have done it”?

  7. SPO

    Jan, that’s abjectly silly, and I suspect you know it. Westerfield’s attorneys knew damned well that he “did it” (i.e., murdered Danielle Van Dam), and they argued to the jury that the parents’ swinger friends could have done it. Well, how could they have done it? Westerfield did it. That’s a lie.

    I don’t think you do your side any favors with nonsense like that.

    1. Gideon Post author

      Well, let’s take this very simple scenario:

      I am pulled over for speeding. I know I am speeding. The cop tickets me, but the ticket is too high and I don’t want points on my license. So I contest the ticket.

      I have a hearing at which I ask the cop about the calibration of the radar gun and can successfully prove that the gun was not properly calibrated and its numbers would have been off by about 15 mph, which would have put me within the speed limit.

      Is that wrong?

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  9. SFOLaw

    “Western Justice’s” position is too simplistic. There is no such thing as pure pursuit of the truth. There will always be three sides of the truth; my side, your side, and the actual truth. Human psychology does not allow for the “truth” to be viewed the same by each individual.

    The defense attorney’s job is to defend and the prosecutor’s is to prosecute. It is that simple. It does not matter if the defense knows for a fact that the client is guilty or not. If he wants a European system let him go to Europe. I think he will find that that system has just as many pitfalls as ours.


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