Really, is the proposition that the ethical rules calling for defense attorneys to zealously represent their clients and the predictable response thereto could sometimes harm the clients that are innocent really all that debatable? I mean, look at what you wrote. You talk about representing them “with every fiber of my legal being.” That means that if you represented a murderer who told you he did it, you would argue to the jury that some other guy could have done it. That’s a lie in just about every other context known to man. And not only would you do that, you’d state that ethics required it if it would help your guy get off. Please remember, I am not taking issue with that–what I am doing is saying that such tactics engender responses from those who see them every day, and those responses, i.e., a lack of trust, a desire to kick your proverbial tail in court etc. can be harmful to the (rare) innocent guy you represent. How hard is that concept? Your response utterly fails to deal with that. Instead, you proudly proclaim how you’ll “step on toes”.

You know what makes a good lawyer–knowing what’s relevant. Your response is completely beside the point I am making. (Note, you cannot make the same criticism of my original post. I wasn’t disputing what Gid wrote.)

Truly pissing on Gid would be to laugh about it. I’m not doing that or anything close to it. I’ll admit, my posts are sharp. But hey, aren’t PDs supposed to have thick skin. After all, they have to deal with often dumb as post judges taken from the ranks of prosecutors. Are sharp posts from a corporate attorney really all that offensive?

No, I’m not a card-carrying bar member…YET. However, I do not believe it good form of you to come on to HIS blog and shred he and other PD’s to ribbons in his sandbox.

Zealous Representation…is this not part of the ethical standard of being an attorney? Forgive my newness but is this not is something that is required of attorneys? What oath did/will every attorney swear to when standing before the judge when sworn in as a member of their respective state?

I may not agree with my client, what he/she has done, but it is my duty to represent them zealously and with every fiber of my legal being as an attorney. I will swear to uphold the Constitution of the U.S. and my state and represent my client zealously. Sure, I’ll step on toes…get over it. I’m not representing my client to make friends, I’m doing it to defend them zealously while adhering to ethical principles.

Yeah, call me protective but if you want to “poke” the PD’s in the eye for zealously representing their clients do it on your own blog. Don’t piss in Gideon’s sandbox on principle and get pious about your comments.

My point about defense attorneys is different. I didn’t say that I wouldn’t trust you in real life, just not in the context of your representation of criminals. A defense attorney will consider it a matter of ethics to say to a jury “X could have happened”, when he knows damned well that X could not have happened because he knows his client did it. A prosecutor should be disbarred for doing that. Defense attorneys in here, with nary a whisper of dissent, have talked in terms of a duty to pass along a witness’ home address to a dangerous criminal. My point, of course, is not that you guys are bad guys or anything like that–hell, I am trying to get 5 years shaved off a criminal’s sentence in a federal habeas petition. My point is that the defense bar’s zealous representation of criminals creates problems for those few clients who actually didn’t do it.

I really don’t see why that’s all that controversial. I’ll admit, it’s a bit of a poke in the eye, but you guys will get over it.

In my experience, there’s a lot more trust between prosecutors and defense attorneys than you assume. Of course there are prosecutors I don’t trust, but there are also lots of them that I do. (But I think the issue of whether prosecutors trust defense attorneys is not the issue identified by Gideon’s original post. I think a lot of prosecutors believe us when we tell them we believe our clients are innocent: they just don’t believe our clients.)

But the main thing I want to address right now is your belief that you just can never trust any defense attorney. You cited a specific example of a defense attorney committing what you call a lie in closing argument and use that as a justification for never believing any defense attorney ever.

So are you equally prepared to declare that you will never believe any prosecutor ever? Because I can cite you lots of examples of prosecutors trying to get convictions against Guy A even though they’ve withheld lots of information from the defense that makes Guy B look pretty darn guilty. In KC a man recently had his conviction for abandonning a body overturned. The man had claimed he’d contacted his attorney to inform the authorities. The prosecutor got up in open court and proclaimed there was no evidence at all to support that even though the prosecutor had the phone records which proved the calls had taken place.

So the point of all of that is, if you’re going to categorically distrust all defense attorneys, don’t you also have to categorically distrust all prosecutors? And if you’re not going to distrust all prosecutors, maybe you might want to rethink your complete and utter lack of trust for any and all defense attorneys.

I really don’t think there’s anything defense attorneys could do to get prosecutors to trust them. When you see defense attorneys who know full well that their client “did it”, yet argue to the jury that some other person could have done it, that shows an absolute willingness to lie. Maybe not what the bar rules would call a lie, but what everyone in the world would call a lie. Or when Lanny Davis actually tries to argue that Kevin Cooper is innocent. I mean, really. Why in the world would anyone in their right mind trust people like that? And to the extent that lack of trust harms your clients, guess what, it’s on you.

This is not a criticism. You rate what you skate, and your job is to protect your clients zealously. And let’s face it, not a lot of defense attorneys really give a flying you know what about witnesses torn to shreds or witnesses scared because some violent criminal knows where they or their family lives. But when the willingness to do these things and lie like rugs to juries (in the guise of offering alternative explanations) creates an utter lack of trust for anything you have to say with your adversaries and which utter lack of trust may hurt some of your innocent clients, you guys get all weepy. Interesting, to say the least.

Face it guys, if prosecutors trusted you more, in some cases, that would be outcome determinative with respect to some of your innocent clients. But how you roll precludes that trust. Therefore, how you roll hurts innocent people.

Now maybe that’s for the greater good etc. etc. Who knows? But how about some self-awareness? You guys extol our system, where a defense attorney is a criminal’s paladin, his hero, taking on the government, blah, blah, blah. There are consequences to that, and not all of them are good, and some of them hurt criminal defendants.

Given the fact that you have said you wouldn’t trust any defense attorney one iota, I would hope you would agree with me that it’s a good thing you are not a prosecutor.

You can say that you never truly know all you want, but I am guessing that you have a pretty good idea when someone didn’t do it. And if the other side could trust you, that would hold benefits for some of the innocent guys. How could it not? But the other side cannot trust you because you’ll do anything (within the law as stretched to the breaking point) for all of your clients, guilty or innocent. And that fact, no matter how you slice it, hurts your innocent guys.

I don’t see why that’s so controversial.

If I were a prosecutor, I wouldn’t trust a defense attorney one iota. Not one. And if you think that doesn’t harm the relatively few innocent clients you have, you’re kidding yourself.

You’ve created a straw man, that’s why no one is talking about it. As I said in my post, the whole area is uncertain — I’d be glad to go to a prosecutor with the facts that I think show innocence, so long as it doesn’t prejudice the case or betray attorney-client confidences to do so. I’m not going to go to a prosecutor with my unsupported personal opinion because he or she isn’t going to care any more than I care about his or her personal opinion that the client is guity. The facts are what’s important.

I don’t think anything we say is going to make any difference to you, but defense attorneys aren’t stupid or evil. We don’t cross-examine because we enjoy making things tough on a crime victim, we cross-examine because we think the victim is mistaken, or lying, or both. We talk about the state’s witnesses with our clients because they may know something about the witness — the client may need to know that the witness is the John Doe who lives on Elm Street, not the one who lives on Oak Street, to tell us that the witness is the victim’s brother-in-law and has hated our client since first-grade. Lots of cases involve intricate relationships between small comunities of folks and we need to know about those ties to figure out bias issues. We aren’t out to help clients intimidate witnesses and generally warn them not to do stupid things like that.

Of course we care about the collateral consequences, SPO, we live in the community too. We are fully aware of the consequences of our jobs as I presume you are of yours. We have family, friends, etc., who may become crime victims or witnesses in the future. That’s why we want the justice system to get it right.

Our clients are facing a uphill battle. My job is to be the one person who stands next to the defendant and to fight hard. Why, be the government is fighting hard against my client and the odds are in their favor.

So this is what you need to understand: I am very nice and respectful ADAs and law enforcement. However, I have a job to do and they are the opposition. It is more important for me to fight for my client then it is for me to be best buddies with the prosecution. The ADA is not facing jail time, time away from his/her children, loss of a job, possible deportation and all the other things associated with a conviction.

That isn’t to say I chase any alibi given to my client, but to suggest that I shouldn’t go to the mat for each and every client is to suggest that I should be an ineffective lawyer simply because you do no like the fact the my client has been accused of a crime. Sorry, that’s not how it works.