Posted on 07/25/2002 12:23:41 PM PDT by Michael2001
Edited on 04/22/2004 12:34:15 AM PDT by Jim Robinson. [history]
Well, I've got many American lawyers angry with me, and that is the subject of this evening's Talking Points memo.
Item, Alejandro Avila, the accused killer of 5-year-old Samantha Runnion, was charged with molesting two 9-year-old girls two years ago, went to trial, and was acquitted.
(Excerpt) Read more at foxnews.com ...
Not unless they changed the code since I took the exam.
How is it a straw argument? You argued that an attorney should never try to get a guilty person off. I provided an example where I think an attorney definitely should.
Now, either agree or disagree, or tell me why that's a straw argument.
The scenario in question begins with the government violating its own laws. That immediately completely changes the formula and would certainly be a basis for arguing that a person was in danger of being convicted unjustly (maybe you recall me using that phrase?). I'm not talking about that sort of situation. What I'm getting at is no different than saying that a person's right to free speech makes it legal for them to say the most vile, offensive things. However, their having that right does not mean that they are obligated to say those things; nor does it mean that I am out of line when I adopt a highly negative view of that person. The attorney may be able to legally utilize any number of tactics to delay justice or to distort evidence (such as Cochran's inference that somebody else's DNA could, if improperly handled, come out looking like OJ's; sort of like claiming that you can get a Picasso by spilling paint thinner on a Monet, instead of just having a big mess that doesn't look like anything). That doesn't mean that he should adopt that strategy, and it certainly doesn't mean that he has some sort of duty to do it.
Oops...guess I was too quick to use a non-legal term for what I perceive to be nit-picking by over-zealous defense attorneys, more concerned with winning than with "doing justice." With your knowledge of the law, however, I do believe you know exactly what was meant by my equally "over-zealous" criticism. I'll let you review some cases and arrive at my meaning.
All of us who are devoted to the principles of our Declaration and Constitution must realize that Cicero, Blackstone, and our Founders would never envision justice as including a provision for enabling criminals to prey upon the innocent.
First off, ABA rule 1.16 is not nearly as clear-cut as O'Reilly makes it out to be. ABA rule 1.16 is actually known as "ABA Model Rule 1.16," with "model" meaning just what you'd expect it to mean: The state bars and judicial systems use it as a MODEL for their own rules of conduct. Often, they clarify the Model Rules to make the do's and dont's easier to understand, but they also often adopt the Model Rule as suggested. Either way, an actual reading of 1.16 renders O'Reilly's argument totally moot. For example, here is New Jersey's Rule 1.16, which is essentially a direct copy of ABA Model Rule 1.16, except for paragraph (c), which isn't relevant to this argument:
(1) and (2) make it rather clear that the lawyer may only withdraw if he believes the continued representation of his client would be assisting an illegal act unto itself, totally separate from the crime the defendent is charged with. For example, if the lawyer knew that his client currently had a cohort holding members of the plaintiff's family hostage, and was going to have them killed unless the lawyer gets his client off. (3) is also clear, at least to me, that it's referencing attempts by the client to get his lawyer to help him achieve things other than simply being found not guilty. (4) simply means that if the client becomes an impudent, arrogant ass and basically makes it physically impossible for the attorney to defend him, the lawyer can say "The hell with this," and get out. (5) of course is just about the client stiffing his lawyer, and (6) is so vague as to be meaningless, basically just allowing the judge leeway to discharge a lawyer for any other reason he/she would consider prudent at the time.(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
In short, 1.16 has zilch to do with lawyers being allowed to drop representation just because they think their client might be guilty, or even feel 100% sure in their own minds that he is. Unless they are in possession of absolutely incontrovertible evidence of their client's guilt, even beyond the usual "beyond a reasonable doubt" standard, they cannot withdraw.
The Constitution does not say, The accused has the right to ask his counsel to lie for him, to mislead, to manipulate the law, or to attempt to confuse the jury about the facts in the case.
No, it does not. In case you haven't noticed, Bill, the US Code is quite sizeable, and only the first few pages of it are the Constitution. That's because the Constitution is the supreme law of the land, and is intended to be the framework upon which all other laws required to run society must be based. And those lower laws say that lawyers absolutely can manipulate the court and "try to confuse the jury." (They certainly can't outright lie in open court, though.) PLAINTIFF'S attorneys do it every day, as do DAs in every county in America. Why do I get the feeling O'Reilly has no problem with that?
Now, I know many lawyers will not accept that, but I don't care. Taking money to free heinous criminals is blood money. The lawyer that represented Avila, John Posa, told the jury not to believe the testimony of the two little girls that swore Avila molested them.
So, O'Reilly thinks a simple on-the-stand verbal accusation against the defendent is absolute proof of guilt, just because the people making the claim happen to be cute little 9-year-old girls? Sorry, bub. The law is the law. If it were a 40-year-old woman, and all they had was her accusation and no other evidence, the defendent would walk free, and rightfully so. Kids can lie. They can be ordered to lie by parents or other "authority figures." They can simply misinterpret the things that are going on around them, especially in the middle of such a traumatic event. Telling the jury that the other side's testimony is wrong is Lawyering 101. And I don't see anything in O'Reilly's rant that gives me any reason to believe Mr. Posa didn't honestly think his client was being railroaded, or at least that the cops honestly had the wrong guy. So he had every right and reason to fight for his client.
Posa did that despite the fact that Avila had taken a lie detector test and failed. We invited Posa on THE FACTOR, but I guess he can discredit 9-year-olds with no problem...
Lie detector results are not admissible in court. There's a reason for that. For O'Reilly to even bring it up is a red herring.
Bill appears to be completely uninformed about some of the most basic rules of the judicial system.
HOWEVER...I am, with a certain bitterness, quite enjoying the spectacle of seeing a lawyer scrambling to justify turning loose a child molester.
You see, to make this argument, the lawyer has to rely upon PRINCIPLE. And that's rather like watching a barracuda expound on the principle of vegetarianism...we all know he can't possible mean what he's saying. Consider the entertainment value of the sermon he brings.
So...if he sweats, let him recall all those obscenely unfair arguments he has used to skewer and condemn and to confiscate and to foment injustice to fatten his pockets...it'll be one of the few occasions when the curses come home to roost next to his tassel loafers.
You are asking human beings to dispense God's justice. Human beings are not omniscient. Human beings can only weigh evidence. Without assumption of innocence, without lawyer/client confidentiality (which, of course, your assumption completely destroys), without an adversarial system, without the guiding principle that we must do as much as we can to insure that the innocent are not railroaded, we would create an even worse "system". Reilly is just posturing and grandstanding.
LOL, come on now -- since when does a lawyer need "something to happen"??
A suit is filed and a psychologist hired. Bam!! The idiots on the jury find damages for "emotional distress" and "permanant psychosis" as a result of plaintiff finding a hideous khaki colored M&M in the bag...
Next case ;-)
The defense lawyer's duty is to defend his client to the best of his ability under the law.
I'm not trying to distort your overall position, but the above sentence says nothing about guilt. "Defend to the best of his ability" (which presumably may include such tactics as I've alluded to) can easily be interpreted as meaning that the goal is to get the client off, regardless of other considerations.
Discover How Judges that Preside
Over Jury Trials Routinely Violate the Constitution.
"As a practical matter, I don't know how this is different from the beginning of a trial, when you tell the jurors you have to follow the law as I state it," Warren said. "I just won't give [the disapproved instruction]." California Supreme Court Don't Tell Jurors to Rat on Each Other
The above statement in bold told to jurors, since 1894 has been in violation of each Defendant's Sixth Amendment right to an impartial jury. The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Prior to 1894 judges routinely told jurors that they were to judge the facts and the law. ...And the law. For the defendant, a jury that judges the law upholds his right to a jury that is not partial for the government. It is the defendants right to have a jury that judges the law as well as the facts.
To judge all facts in the case includes judging the most critical fact -- that a person was charged with breaking a certain and specific law or laws. Without that there can be no case to take to trial. It is the primary and most critical fact for which the government makes its case. Pressing criminal charges against a person gets the process in motion. The reason it must be the prosecution that gets the process started is because the suspect/defendant is innocent. Innocent until proven guilty in court.
Thus it was not the person's/defendant's actions that initiated force against any person or their property. For, until the defendant has received the verdict it is not known whether the arresting law enforcement officer acted in self-defense in correctly upholding the law or unknowingly acted with initiation of force while attempting to uphold the law. That is, the LEO making the arrest had reason to believe the person broke the law and then the DA (district attorney) pressed charges against the suspect. Yet the LEO/DA/government don't know for certain that the suspect/defendant broke the law. That detail will be answered by the jury.
What does it mean when the jury's verdict is an acquittal? It means the charges against the defendant were in error. That is, the defendant never broke the law he was charged with breaking. The law has been judged by the jury to have been wrongfully charged against the defendant. The jury says, "No. The law does not apply to the defendant breaking it. The law only applies in that the defendant abided the law." The law has been deemed to have been wrongfully applied -- the law does not apply to the defendant.
Guess what? That's what jury nullification is -- the jury discovers the same thing. That is, with jury nullification the jury decides that the law does not apply to the defendant -- the law had been wrongfully applied.
As per the Sixth Amendment the defendant has the right to an impartial trial wherein the jury judges the law. For there is no way the jury can avoid judging the law. The jury has only two choices, 1) the law was correctly applied/charged against the defendant, or 2) the law was wrongfully applied/charged against the defendant.
It is each judge's job responsibility to ensure that the defendant's Sixth Amendment rights are protected. The primary key to each trial is the laws that the defendant is charged to have violated. It is by way of the facts presented by the prosecution and the defense during the trial that the primary key -- law as charged -- is judged to have been correct or in error. The facts presented by the prosecution and defense are secondary. That's the nature of cause and effect relationships. When one thing cannot exist without the other first being present the first thing is primary and the effect of that is secondary.
It is accepted that the defendant acted in a manner that appeared to have broken the law and was one factor in the LEO's/DA's/government's judgment that the person's actions violated the law. It cannot be misconstrued that the defendant's actions are the primary cause. For the defendant is deemed innocent and only suspected to have broken the law. The primary cause is the LEO's/DA's/government's judgment to set the court process in motion -- not the suspect's actions.
As per the Sixth Amendment an impartial jury favors neither the government nor the defendant.
Each jury that each judge has failed to inform the jury that they are to judge the law as well as the facts as they pertain to the case/trial has caused each of those juries to favor the government over the defendant.
Since 1894 each judge that has presided over jury trials has routinely violated the constitution. Concurrently, each defendant in each of those trials has had his or her Sixth Amendment right to an impartial jury violated. ....Violated by the judge presiding over the trial.
At issue in People v. Engelman, 02 C.D.O.S. 6411, was California Jury Instruction 17.41.1, which judges give before deliberations. It directs jurors to advise the court if they suspect someone is refusing to discuss the evidence or plans to disregard the law. California Supreme Court Don't Tell Jurors to Rat on Each Other
As shown earlier the jury cannot disregard the law for it is the law that is the primary key being judged.
"Unless jurors are informed of their solemn responsibility to report misconduct, I predict that many judgments will be reversed simply because the trial judge never had the opportunity to cure the problem." California Supreme Court Don't Tell Jurors to Rat on Each Other
That is trivial compared to the fact that virtually every judge presiding over jury trials routinely violates defendants' Sixth Amendment rights. Now there's a valid reason why many judgments will be reversed. Reversed simply because the judge violated the defendant's Sixth Amendment right to an impartial jury when he instructed the jury to favor the government over the defendant.
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