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Ethics in the law profession...a question(6 posts)

Ethics in the law profession...a questionBikeViking
Oct 7, 2002 12:09 PM
How aggressive can a defense attorney while defending his/her client? The Westerfield/Van Dam murder case does raised this question in my mind. It is my understanding that his attorneys knew he committed the murder because they were working a plea bargain with the DA until the police found the body Danielle Van Dam prior to the deal closed.

Knowing their client committed the murder, is it legal/ethical to cast doubt the character of the parents and their "friends" (apparently they were swingers) when they know their client committed the murder? While I understand the need for a proper defense, does that give defense attorneys the right to mislead the jury toward a verdict they know does not serve justice? I know a good defense is paramount to our system, but I can't imagine that a defense attorney knowingly presenting false information to a jury is legal/permissible.

This is a really thorny question, but with all of the attorneys that frequent this board, it should make for an enlightening thread (I hope).
legal...must have been, ethical...maybeColnagoFE
Oct 7, 2002 12:36 PM
a lawyer's job is to represent his client the best way he can. evidently they thought this was the best way to cast doubt on the client's guilt. it must have been legal as the judge allowed the testimony.
re: Ethics in the law profession...a questionjtolleson
Oct 7, 2002 12:46 PM
I have not followed the trial that closely so can't speak to the specifics.

Introduction of false evidence, or even asking questions designed to elicit testimony that the lawyer knows to be false is absolutely prohibited by the rules of ethics.

However, hinting that law enforcement has failed to find the "real killers," or even suggesting who those people might be, is fair game.

The difference is that the latter technique is designed to force police and prosecutors to do their job -- meet their burden of proof beyond a reasonable doubt). An alternative theory of the crime, even if the lawyer knows it to be false, does not in my opinion violate the rules of professional conduct.
tough oneDougSloan
Oct 7, 2002 2:05 PM
You can't solicit false testimony. However, credibility is always fair game.

In this case I understand the lawyers suggested through questions that someone else actually committed the kidnapping and murder. I think that is eliciting false testimony.

The lawyers' "spin" or argument is not evidence, and the judge instructs the jury something to that effect.

I think they came very close if not actually crossed the line in this case. There was a conviction, however.

You can't unduly tie the hands of defense lawyers. You want defendants always to be able to speak freely with their lawyers without fear that they will give them up. The confessing (to his lawyer) defendant is entitled to the same defense as the secretive one. Would anyone prefer that all defendants lie to their lawywers to get a better defense?

In this case, the defendant may have held a small degree of guilt and sympathy for the parents by offering to lead them to the body (but in exchange for a plea bargain). If you want to use that against him, then you'll discourage future defendants from making any such offers, and I doubt we want that.

Tough question, particularly without knowing all the details.

Doug
If legal and ethical were the same thingcarnageasada
Oct 7, 2002 5:42 PM
There wouldn't be any lawyer jokes.
It is hard to judge this onems
Oct 8, 2002 7:44 AM
Legal ethics is an interesting and complex area. Although there are lots of black and white rules (for example, it is a violation of legal ethics to use a client's money for the lawyer's personal purposes), a great deal of legal ethics is subject to debate. Also, a lot depends on the facts. For example, what do you mean when you say that the attorneys "knew" that he committed the murders? Does this mean that the client confessed to the attorneys, or that the attorneys looking at the evidence knew that he committed the murder even if the client said that he did not (or did not say anything at all). Although it probably does not happen too often, people theoretically do plead guilty when the evidence is strongly stacked against them even when they are innocent.

I do not practice criminal law (although I have represented death row inmates in habeas corpus actions). For those of us that practice on the civil side of the courts, things that criminal defense lawyers do often leave us uneasy. A lot of what you recount falls into this category for me. However, criminal defendants are in a very different position from other litigants. Criminal defendants have constitutional protections that other litigants do not have. Further, the consequences of a conviction (loss of personal liberty or life, if the death penalty is involved) are very different from a loss in a civil case. A lawyer has an obligation not to present false testimony to a court and the Supreme Court held that a criminal defendant's right to effective counsel does not extend to having a lawyer that is willing to present false testimony. But, at the risk of sounding like a lawyer who recently was President of the United States ("what is the definition of 'is'"), it sometimes may be hard to say what is "false."

My response probably leaves you shaking your head. It is hard to get a straight answer from a lawyer. But, if there were easy answers to legal questions, there would be no need for lawyers. (BTW: there are a lot of legal questions that have easy answers and you do not need a lawyer to answer them -- there are lots of protectionist things that the legal profession does with which I disagree
-- another topic for another day.)