Wednesday, April 18, 2007

Do Trial Lawyers Have Morals?

The ones who only take cases of innocent clients might have morals; the others do not.

The purpose of a trial-by-jury is to protect the innocent, and not to protect the guilty. So, if someone is guilty (of an unambiguous crime like rape or murder), and their lawyer knows it, then a moral lawyer ought to refuse to take the case. Of course, lawyers need to earn money, which explains why they defend (and lie to defend) the guilty. But when lawyers knowingly attempt to persuade juries to free violent criminals, then it can hardly be considered "moral" if the reason is to make money.

Similarly, when trial lawyers attempt to have the courts punish innocent parties (like, say, McDonalds for allegedly making people fat, or drug companies for producing drugs with negligible side effects), then they are also without any morals.

The fact that lawyers often become very affluent by winning these cases does not make them less moral. If they did it "pro bono", they would be no better. In fact, it's the legal system itself that provides the incentives for unscrupulous lawyers to behave in such a depraved way. But still, lawyers do have the ability to turn down cases; they can make choices as well as anyone else.


TDK said...

Atticus Finch defended Tom Robinson, a man whom the townspeople overwhelmingly assumed to be guilty. We know Tom Robinson was in fact innocent because we view the events through the eyes of the author, but let us explore the possibility that we don't have that advantage. We don't need to imagine a backdrop where lawyers are expected to not defend the guilty, because that was Atticus Finch's world.

A moral code should permit Atticus to defend Tom Robinson despite the fact that the majority think him guilty, precisely because the majority are wrong. In fact I would go further and say that even if a court appointed lawyer been a part of that majority, then he would still be obliged to defend Tom Robinson to the best of his ability. Again, precisely because the majority are wrong.

The important point that I have attempted to tease out is that the lawyer is NOT on trial, the accused is. The lawyer should not be expected to try and determine guilt prior to accepting a case precisely because that is the function of the trial.

Far better that lawyers assume they are taxi cabs for rent. They do not become part of the moral universe of their clients and should not be judged as if they were. Their job is to represent their client's interests regardless of guilt.

The alternative is to despise Atticus because he represented a man who was found guilty of rape despite being warned that no jury would find him innocent.

faQster said...

I agree with what you say, but that's apart from where, for example, the client confesses to the lawyer and asks him for legal help anyway. You know, "maybe I'm insane".

Or when lawyers actively look for problems where there are none (like in the Vioxx case) and manage to persuade a mathematically illiterate jury.

The lawyer has every right to defend his client, and the client has a legal right to a trial, but legality doesn't imply morality -- nor should it. Just because it is legal doesn't mean that it is "right".

TDK said...

I worry about the climate of social pressure that follows if we start from a default position that lawyers should not represent guilty clients.

You cite two examples to bolster your case, (one of those generic).

I'm not familiar with the Vioxx case. The second example concerns the failure of juries to understand complex cases. Well that works both ways. A skilled prosecutor can sometimes convict innocents. This then is an argument about the potential unfairness resulting from a trial where the defending and prosecuting lawyers have disparate skill levels.

Since I'm not familiar with the first example perhaps you can point me to something that makes you think that the lawyer knew the guilt.

faQster said...

The recent Vioxx case involved a man who had a heart attack, followed by a lawyer who persuaded a jury that a drug used by millions of people (without incident) caused it. This single data point was sufficient for the jury to punish the drug company by $200M, with a cut, of course, going to the attorney.

Soon after, lawyers placed ads almost everywhere asking people if they think that Vioxx made them sick.

With those standards, the lawyers might as well start suing aspirin makers as well.

TDK said...

When I Googled Vioxx I came up with the case you mention but after drafting a comment I suddenly thought you can't mean that case because the party that was being judged was found guilty - it didn't seem to fit your argument.

My superficial thoughts on the Vioxx case are that juries are made up of citizens who have grown up in a culture where the default position is that corporations are guilty. This derives from popular culture and education. Thus the verdict was no real surprise.

As to how this example relates to your original argument, I'm at a loss. I can't decide whether you are saying that prosecutors shouldn't attack innocent defendents or whether you are saying that lawyers shouldn't have defended Vioxx. On balance,I'd guess the former.

Of course, there is no doubt that no one should prosecute innocent people, or people known to be innocent. That ought to be a no brainer. However, the prosecutors did think Vioxx were guilty and the jury agreed.

It seems to me that the real problem is that up to now, the right has conceded the culture war. We need to convince the jury that companies (in general) are decent and law abiding. That when they do break the law they should be penalised but when they go about their business in an ordinary way they should be celebrated not despised.

That takes us far away from the bar and your original premise.

Let me return there and offer another angle. If a murderer was about to be executed and we learnt that his mother declared her belief in his basic decency, we would not think her wicked even though we despised the son for his wickedness. We recognise that a mother defends her children, right or wrong, and we respect that natural truth.

I think the defendent's lawyer is in part playing the role of the mother, knowing the worst but looking for the best. I think it a grave mistake to deny that even to the guilty.

faQster said...

You're right -- the Vioxx case was a poor illustration of my point. But is it really true that the prosecutors thought that the drug company was guilty? Or was it more the case of thinking that they could (ab)use the law in order to return a guilty verdict? The law is very often a rough tool to determine guilt. Put another way, a change in legislation can change the legal status of an act, but not its moral status.


Mothers will often defend their criminal children, and it's an interesting question of whether their biological impulses should mitigate the immorality of their beliefs.

But I doubt that lawyers have that impulse. So, let me try again with a real-life example of immoral lawyers.

Are you familiar with Colin Ferguson?

He walked through a commuter train, shooting at people, and murdering six.

And here's what his lawyer said:

"There was no doubt that he was there, that he fired the weapon, that he would have fired it more if he had not been wrestled to the ground. There is no doubt that Colin Ferguson, if sane, was guilty."

And so, the lawyer attempted a politically-based "insanity" defense of Mr. Fergusen. Specifically, a "racist society" caused "black rage" and left him no choice but to commit the murders. (Talk about determinism!)

Fortunately, this line of reasoning did not work. But my purpose here is to not judge the "system" (which did work here) but to judge the morality of a lawyer who would invent such an excuse, and then attempt to fool a jury into agreeing with it.

TDK said...

Or was it more the case of thinking that they could (ab)use the law in order to return a guilty verdict?

If you start from the Marxist premise that profits are wicked then it follows that Vioxx is guilty. We might debate whether this lawyer was driven by pecuniary gain rather than idealistic zeal. In the latter case, the lawyer does think the company guilty.

The law is very often a rough tool to determine guilt. Put another way, a change in legislation can change the legal status of an act, but not its moral status.

If we separate the law from morality then we can certainly assert that there are bad laws. But this is an argument for changing the law not for requring that certain laws are not prosecuted. Bad laws bring the legal system into disrepute but so does arbitrary enforcement of law.


My point linking a mothers defence of her child to the role of a legal advocate is that both are amoral rather than immoral.


Are you familiar with Colin Ferguson?

No, but I read your link.

Some thoughts:

On one level, anyone who gets on a train and starts shooting innocent strangers is insane. It doesn't seem surprising that a claim of insanity was made. The jury was offered that defense and rejected it. Surely that's the right sequence of events.

In the UK a person found to be criminally insane is very likely to be locked up for life, which in terms of protection of the public is no different an outcome than a guilty verdict (and in this case very nearly a better one). Nevertheless, I am uncomfortable with this idea.

Black rage obviously derives from the collectivist premise that a group acts spring from a the collective experience and not derive from individual notions of right and wrong. Obviously I don't agree with this. If such collectivist ideas were true then it would be hard to hold any individual guilty of any crime. In particular no black man could be held guilty of any crime since they could argue that they were victims and society drove them to it. I actually think this line of reasoning when applied exclusively to minorities is quite patronising and racist.

Interestingly the Bader Meinhof Gang included several members of SPK (Socialist Patient collective), a group which argued that capitalism made people mentally ill and that the cure was violent revolution. This has echoes with Malcolm X "By any means necessary" or Stokely Carmichael. Such political arguments have the potential to work, not because they are allowed to be used in court but because the wider cultural battle to shoot down such nonsense is never waged.

It seems to me that the insane defence to some extent contradicts the "race rage" defence. They can't both be true.

Colin Ferguson was found guilty despite such a defence. That suggests that juries recognise a frivilous defence at least some of the time, which again supports my argument

I'd have thought OJ Simpson was a better exemplar of the behaviour you criticise but even there, the only reason it was successful (I judge) is that politics overrode common sense. Racial based politics trumped reason.

I would agree that using such arguments certain arguments to defend a guilty person might be immoral but it doesn't follow that all defence arguments are immoral.