O'reilly can't even get his arguments right. The law doesn't require that a lawyer not commit an immoral act. But, the code of ethics does require that if you know "for sure" your client is guilty, you must withdraw. In states, you must also, under your duty of candor to the Court, report the client if you know he or she is giving perjurious testimony. And, further, if you assist in a fraud on the Court, you may face charges as well.
Many lawyers do tread the line on these rules. And, frankly, many leap over that line. Of course, O'Reilly makes no allegation that such a situation took place here. He looks at the current case, and has the luxury of hind-sight to go back and assume the facts and evidence were clear and true in that case. Let's be clear, O'Reilly was not on that jury, so he doesn't know what the facts were that the jury was entitled to evaluate. Man, what a baffoon he is.
With respect to his "repugnant" argument, he's even a bigger fool. Of course a lawyer may refuse to accept representation of a case. Frankly, our system of justice is made great by the lawyers who take these horrible cases. If we cannot provide a defense for the unpopular, our basis of law crumbles.
Lawyers also have a duty to zealously represent their clients. They have a duty and obligation to explore every defense. Failing that duty, we have a system that rubber-stamps all who are indicted. As far as confusing the jury goes, the job of counsel is to discredit, where possible, the evidence against a defendant. Counsel's first job is to make sure no evidence is offered that is not accepted under the rules. For instance, while Bill prays at the alter of the lie detector, it is evidence that simply is not admissable. Why, because it is not scientifically sound to pass muster as reliable evidence. That's in every court. While it may be a good investigative tool, and while some experts may use it better than others, it is generally too unreliable to be used in a criminal proceeding where the standard for guilt is beyond a reasonable doubt.
Of course, the federal rules of evidence, established by legal scholars, years of case law, the common law, the constitutional principles, and our elected legislators, could be wrong. Maybe they all should just consult O'Reilly.
With respect to O'Reilly's argument on the 9 year-old girls, he is wrong again. Counsel had an obligation to test the credibility of those witnesses. If they had inconsistent stories, different facts, holes in their memories, or facts that could not stand scrutiny, counsel had an obligation to point out those facts, and to make that argument to a jury. If he had not, the defednat would have had grounds for appeal as his counsel might have supplied him insufficient assistance of counsel. Result, he walks or gets a new trial anyway.
Listen, this guy who kidnapped, raped, and killed this girl should die, if convicted, after a fair trail. And, I join the ranks of millions who would love to see him die if convicted. But I have a bit too much respect for that Constitution O'Reilly references, to deny the man his right to competent counsel, committed to represent him zealously, within the bounds of the law and the code of ethics.
Our freedom is based upon, and our country is made great not by those willing to stand-up for and treat fairly the sympathetic victim, but rather by our willingness, no matter how we feel, to provide those same rights to those we loathe. That's what many lawyers do, and frankly, many do it for far less than one might think. Everyday, in every jurisdiction, public defenders, and local bread & butter attorneys, represent poor and indigent accused, and they do so without glory, fanfare or dollars. There are very few O.J.'s out there. Most accused criminals have little money, less education, and poor support. Their lawyers are paid, if at all, by the State. That's the reality of criminal defense. I don't do it. I, in fact elect not to do it as O'Reilly suggests. But I at least recognize its value to our system, and I am thankful for those who do it. And, I'll put my conservative credentials up there with anyone. Including Bill O'Reilly.
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.
Well, there's the rub..
:)
Everyone hates lawyers until they need them. It's a dirty job, someone has to do it.
If by having effective defense counsel, we ensure the integrity of the criminal justice system -- I'll take the current excesses over the alternative. The idea of a system that runs roughshod over the rights of the accused but innocent should scare the tar out of you FReepers.
It should be criminal for a lawyer who knows his client molested some kid to accuse a child of lying. If his client tells him he didn't do it, and the kid is lying, it is the lawyers obligation in that case, to try and break the witness down. It's a fine moral line, but it needs to be followed.
Why? His oldest son 'did' it.
How much repugnancy would be involved on a community standards level of the repugnancy scale for Bill Clinton to step away from a client?
It's all about the money.To some, perhaps. But when it's all said and done, it's all about the Constitution. Avila was entitled to legal representation. If he didn't get one, the court would have appointed a public defender (on the taxpayers dime). If his lawyer's didn't make a full effort, the trial was liable to be thrown out.
O'Reilly's been trying to distinguish himself from Limbaugh lately by playing the populist card. He's really damaged his credibility by doing it.
-Eric