Wednesday, March 25, 2009

What if ... ?

It was awhile back in conversation over a detective story that I had to explain to my daughter what a "plea bargain" is. Which is to say, I had to explain some of the stranger things in our court system. And as happens when you see the world through new eyes again, I found myself wondering:

What would happen if, in the bar association, it was considered a breach of ethics -- or even threatened your good standing as a lawyer -- to knowingly enter a "not guilty" plea for someone you knew to be guilty? What if, in defending someone known to be guilty, the only ethical option acceptable to a lawyer was to seek a more lenient sentence? If a lawyer was seeking the acquittal -- rather than the fair sentencing -- of someone known to be guilty, what if that lawyer was seen as obstructing justice? Would the change hurt anyone but the guilty? I suspect that, to keep down the nuisance and harrassment suits against lawyers, such things might be better handled by the bar or some such rather than leaving the policing of lawyers to the whim and initiative of citizens; otherwise the pendulum would swing too far the other direction and no good defense would be mounted. Besides, proving what a lawyer knew, and when, would not be an easy matter.

What would happen if a defendant's plea -- or rather, the honesty of a defendant's plea -- was considered during the sentencing phase of a trial? What if a person who made an honest admission of guilt could have his or her honesty considered during sentencing as some sort of incentive for honesty? Possibly it already is considered ... but when explaining "plea bargain" to my daughter, I had to wonder: how many people plead "not guilty" even when there is (say) a security video tape of a robbery, just because currently there is no incentive to be truthful?

These things would work best if we had better standards for convicting only the guilty. Granted, the majority of the guilty seem to walk free from our courts. But sometimes it goes the other way and someone innocent ends up living a nightmare. So speaking of "what if": What if every state undertook a study of convictions that were later disproved and overturned, then found out how the blazes that happened? What if similar cases were nominated for a review? What if juries were advised when any "red flag" situations arose that have been known to cause wrongful convictions?

Just pondering. There may be holes in these ideas, but I wonder if they could help.


PS (PSanafter-thought) said...

I've had questions about the adversarial system in the courts as well. Your questions are good. As I understand it, our system protects the REST of us. A person has to be guilty as charged so the system is in place to really prove beyond a doubt that the evidence fits the charges.

That said, I've wondered what happens when the defendant tells the lawyer that he isn't guilty, but during the trial, the lawyer becomes convinced, by the evidence, that the defendant is actually guilty.

How often does a truly guilty defendant, who insists on his innocence, later admit his guilt?

If a guilty defendant doesn't admit his guilt, can he ever ask for forgiveness?

Occasionally, there is news about a person who is going to trial admitting at the last minute that he is guilty, avoiding the trial.

As I write this, I'm noticing that I'm using the general "he" but thinking "male." Hmmmmmm

Weekend Fisher said...


Yeah, and then there's the fact that right now, the lawyer can *know* the defendant is guilty and still go in with a "not guilty" plea, and it's *not* considered a breach of ethics in the legal community, from what I can tell. How much sense does that really make? Does anyone benefit from that but the guilty person and the lawyer making a profit by knowingly obstructing justice? Things that make you wonder.

What you say about defendants who later admit they're guilty ... I've wondered, after a trial, after someone is acquitted (& so can't be tried again), what if there was some sort of anonymous survey as to whether the person was really innocent or guilty, what were the contributing factors in securing an acquittal, etc. I wonder if someone set up a survey and an incentive ($50 to answer, as they prepare to walk free), what would turn up.

Take care & God bless
Anne / WF

PS (PSanafter-thought) said...

I rarely watch the lawyer shows, but on a few I've watched, the so called evidence is very strong, but the defendant says he isn't guilty, so the lawyer works hard to try to figure out angles that disprove the supposedly obvious evidence. Sometimes the show leaves you hanging...was the guy really guilty or not.

OtOH, sometimes the supposedly obvious evidence is interpreted incorrectly and the wrong guy is charged.

Hey, how is that any different than reading a supposedly obvious passage in the Bible and coming to a different conclusion than that of someone of a different Christian tradition? Happens all the time.

BruceA said...

Here's something to consider: Suppose an attorney knows the client is guilty, and pressures the client to enter a guilty plea. Is justice served? What if the attorney is only 99% certain of the client's guilt? Is it okay to pressure one innocent person in 100 to waive the right to a trial? And what if the attorney is only 95% certain?

I think the justice system is enhanced by providing the most robust defense possible for all defendants, no matter how certain the attorney may be. If the defendant wants to plead not guilty, and wants to give testimony, then the attorney should honor that.

I can think of at least three reasons this improves the whole process:

1) Prosecutors can't get in the habit of cutting corners or relying on plea bargains.
2) People who are convicted can't go to appeals court and say they weren't given a fair trial
3) Watchdog groups around the world can't say people are railroaded in American courts

I think that all too often, a defense attorney who believes the defendant to be guilty doesn't give a robust defense, particularly if the defendant can't afford an attorney and the court has to appoint one.

Weekend Fisher said...

Hi Bruce

I wonder if I should clarify. I wasn't talking about times when the attorney "knows" the client is guilty (but the attorney is really just guessing). I was talking about times when, say, the client has confessed and the attorney actually knows the client is guilty.

In the first case, I would not want an attorney to second-guess and refuse to enter a "not guilty" plea for someone he "knows" is guilty; that would be unethical.

But likewise I would not want an attorney and his client feeling fine about smilingly lying to the court, judge, and jury without any feeling of a breach of ethics for that move -- which happens every day under our current system, probably in a significant percentage of trials. To insist on entering a "not guilty" plea for someone he knows is guilty is unethical.

Take care & God bless
Anne / WF

BruceA said...

which happens every day under our current system, probably in a significant percentage of trials

Do you have hard numbers to back this up? I find it difficult to believe this happens with frequency.

Weekend Fisher said...

Here are the reasons why I think it's common:

1. General principle: "Attorney-client privilege" - a defendant can freely discuss his guilt with his lawyer with no requirement for the lawyer to tell anyone or alter his plea for the client.

2. The matter-of-factness of a lawyer I heard discussing his intentions to enter a not-guilty plea for someone he knew had confessed to a serious crime: Time-before-last when I was called for jury duty, after sitting through all the paneling and so forth, at the last minute the fellow plea-bargained. Afterwards, the defense lawyer was in the hallway as we dismissed and was freely discussing that the fellow actually had been guilty of the original crime (though had just successfully plea-bargained for less). The lawyer was entirely matter-of-fact about having been prepared to bother with a trial -- which would have only happened with a not-guilty plea -- despite having known that the client had confessed. (He had mentioned that he intended to have the guy plead the fifth amendment, which apparently would have kept this particular confession out of court and away from the jury's knowledge, no idea what the conditions on that would be.) I'd have thought this move was unusual -- but the lawyer seemed to think nothing of the sort; this was a standard move, to go by how he discussed it.

So yes, between those two things, I don't doubt that it happens every day that a lawyer enters a "not guilty" plea for someone he knows to be guilty -- which is enough to make it significant in my book. I don't know if statistics have been collected yet; the lawyers aren't under any obligation to answer questions on it.

I was discussing earlier in this thread how that would be an interesting post-trial survey to conduct for people who were acquitted & therefore safe from re-trial for that crime: were you guilty? Were you up-front with your lawyer about that? (etc.)

I'm sure interviewing some retired defense lawyers would be enlightening, too, if they didn't mind being interviewed ... and didn't think it broke attorney-client privilege, which is supposed to last perpetually even if the client has since died.

So I'm hoping you can see why I think it's a real concern, that lawyers do enter not-guilty pleas even when they know for a fact their client is guilty.

Take care & God bless
Anne / WF

BruceA said...

Weekend Fisher -

I can't dispute your reasoning. Still, even if this is a regular occurrence, I think it's healthy, for the reasons I gave above. If defendants weren't given a robust defense, there would be too much of an incentive for prosecutors to cut corners. I'd rather see a guilty person set free than an innocent person go to prison.

Weekend Fisher said...

Hi Bruce

Thanks for the interest in the topic.

I would want a very robust defense for any client who was innocent. So I'm trying to tweak the hypothetical rules to say: what's the best way to keep that robust defense for any innocent client, but make it plain at the same time that a robust defense for a GUILTY person is unethical, whether that's on the client or the lawyer or depends on their level of knowledge.

I agree with your assessment of which of two evils is the lesser; meantime, I think "lesser of two evils" often leads to complacency, and I think there's some room on the table for cutting down how much of that "lesser" evil we get, since improving the system is better still.

I've put forward my suggestions on the best way to make it so there's not quite so much incidence of that type of evil. Do you have any suggestions?

By the way, the fellow I met for his jury panel who plea-bargained and confessed and his lawyer knew it -- had molested an 8 year old child and could potentially have walked free, and did in fact get convicted of a lesser charge under his plea bargain. So I have to say: the "lesser" evil can still be pretty darn evil, and I don't want to become complacent about it if solutions are available.

Take care & God bless
Anne / WF