tag:blogger.com,1999:blog-5945843206427351559.post5138503490083817048..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: Who We Are And What We DoJeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-5945843206427351559.post-19527321658794445562009-11-27T15:19:14.757-05:002009-11-27T15:19:14.757-05:00I'm not mixing things up, and it's discour...I'm not mixing things up, and it's discouraging that you can't or refuse to understand after my previous comments that I fully understand that the role of a criminal defense attorney is to get the best result possible for the client, even if that meant getting those hypothetically guilty PA judges off scott-free. This whole thing strikes me as a word game, with you preferring to emphasize one aspect of the criminal defense lawyer's relationship to justice and me preferring to emphasize or at least recognize another aspect. By fighting against injustice, I fight for justice. Is that so hard to understand? Is it so hard to understand the "aspiring criminal defense attorney"'s effort to conceive of the job she aspires to as serving a higher good, as apart from the "hired gun" "mob lawyer" of the popular imagination? I didn't appreciate Scott's unwarranted insinuation that because I don't mouth his favored incantations maybe I shouldn't be a criminal defense lawyer, and I don't appreciate yours either.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-41767879440242762762009-11-27T14:10:55.838-05:002009-11-27T14:10:55.838-05:00You keep mixing things that don't mix just bec...You keep mixing things that don't mix just because they hook back to the same phoneme. <br /><br />As a civilian, and assuming that the allegations against the PA judges are true, I'd like to castrate them and then throw them to lions. As a citizen who believes in more socially and constitutionally acceptable punishments, I'd like them to pay all their ill-gotten gains in restitution and fines and then be locked up for a good long time.<br /><br />But as their criminal defense lawyer (which I am not), I'd like them to get off. As a criminal defense lawyer, I will applaud if they do.<br /><br />I don't doubt for a moment (though I have no actual information) that OJ was (and is) factually guilty. As a criminal defense lawyer, my responses were to applaud the jury for understanding and applying the concept of reasonable doubt and to wonder whether there were useful lessons to take from the case.<br /><br />Justice simply is not something I typically seek or want in the roll of a criminal defense lawyer. What I want as a civilian is different. If you can't separate those things, then you really shouldn't be doing criminal law.<br /><br />I've done a ton of press over the years - especially when I was on the ACLU staff. I understand the importance of good PR. But lying about my job for the sake of PR isn't good PR. Making people understand the job is a whole lot better.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-25664671883984950492009-11-27T03:12:27.276-05:002009-11-27T03:12:27.276-05:00Jeff,
In my role as a criminal defense attorney I...Jeff,<br /><br />In my role as a criminal defense attorney I am quite conscious of the injustices perpetrated by the State against defendants. By fighting against these "injustices" and attempted "injustices," I, almost by definition, am serving the cause of "justice." The confusion here seems to come from the common understanding of "justice" as implying some measure of punishment appropriate to a given criminal act. But in my role as criminal defense attorney, I am as bent on mercy as you. Mercy is justice. In my role as criminal defense attorney, I view all punishment as inherently negative, as unjust, as serving no good purpose. I kinda sorta have that view even outside of my role as a criminal defense attorney. In any event, I recognize that in my role as criminal defense attorney my job is not to seek some proper measure of justice/punishment, but to convince whoever's deciding my client's fate that "justice" entails as little harm to my client as possible. Because nobody really knows what anybody truly "deserves," there is nothing dishonest about such advocacy. <br /><br />But it's worth asking ourselves: how bent are we on mercy to the exclusion of justice in the more popular sense? Aren't we hoping that those two sick bastard judges in PA who sent those kids away to juvenile prison in return for kickbacks get what's coming to them? I am. I don't want them to be shown any more mercy than they showed those kids. So it seems that justice in the popular sense is still important to me as a human being. Therefore, I am not eager to say that in my role as a criminal defense attorney justice is no concern of mine, when I can truthfully say that it is. And from a public relations standpoint, why would we want to emphasize that it's not? Isn't our reputation bad enough?John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-3607687600722502992009-11-26T23:07:05.382-05:002009-11-26T23:07:05.382-05:00John,
Certainly the noun "justice" can...John, <br /><br />Certainly the noun "justice" can signify multiple things. But that a word may have more than one meaning doesn't mean that they're all present all the time. Prosecutors seek justice. Defense counsel defend. Both prosecutors and defense counsel are part of the criminal justice system which occasionally may achieve something that some folks would call justice. But if that's a now-and-then by-product of my defending, it's absolutely not my purpose.<br /><br />Justice may be served, but I don't serve it. She is neither my mistress nor my master.<br /><br />Frankly, I'm more interested (when in the roll of defense counsel) in mercy than in justice. (And if you really want me to pursue the complementary disjunction between mercy and justice, I'll do that in another context than these comments and begin with the fifth book of The Faerie Queene, the Book of Sir Artegal, knight of justice.<br /><br />As for the question of when we know clients guilty, that discussion involves both the epistomological issue of the nature of knowledge and the definitional problem of what we mean by guilt. I've discussed the latter a bit in the context of Cameron Todd Willingham and may again one of these days. The former doesn't really seem appropriate to this blog.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-61509339527902617592009-11-26T11:44:35.994-05:002009-11-26T11:44:35.994-05:00It's also worthwhile to examine a little close...It's also worthwhile to examine a little closer the premises of the hypothetical defense of a client we "know" is guilty. How in the world do we "know" that? Do we only "know" that because the client told us, or because we are otherwise privy to information we wouldn't have access to apart from our representation? Or do we merely "think" he's guilty? God forbid we would have any moral qualms whatsoever about trying to get someone acquitted who's only "probably" guilty, or even who we personally think beyond a reasonable doubt is guilty. Whether the defendant is guilty beyond a reasonable doubt is for the jury to decide.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-63012716339712574592009-11-26T11:01:11.243-05:002009-11-26T11:01:11.243-05:00Rick,
I do get and fully embrace what we as crimi...Rick,<br /><br />I do get and fully embrace what we as criminal defense attorneys are saying when we emphasize that the government's proper focus is on justice while the defender's proper focus is not on justice but on defending. The formula is part and parcel of the asymmetry between the prosecution and defense that properly inheres in our criminal justice system, along with, as you explain in your own post on Scott's post, the presumption of innocence. The formula demands, for example, that a prosecutor not bring a particular criminal charge just because he can (or as leverage to secure a more punitive plea agreement than he otherwise might). It demands that his prosecutorial discretion be informed and constrained by the interests of justice. <br /><br />But recognizing and embracing this important formula does not exclude also recognizing and embracing, publicly, that we as criminal defense attorneys are guardians of "justice" too. As the "aspiring criminal defense attorney" wrote in her post, "justice is a multifaceted concept." There are certain "crimes" that shouldn't be crimes at all. By doing everything within our power, fair or foul, to get our "guilty" clients acquitted of such "crimes", we serve "justice." On the other hand, we may have a client who we ourselves would send up the river if we were sitting on the jury. But by putting that thought out of our heads, and putting the government to its proof, and/or getting evidence excluded because the government obtained it in a way that endangers the liberty of all, we serve "justice." Indeed, it is better that 100 guilty men go free than that one innocent person should be convicted. By adhering to that principle, we serve "justice."John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-69735617420247157352009-11-26T00:51:16.224-05:002009-11-26T00:51:16.224-05:00John, it's not a question of ceding moral high...John, it's not a question of ceding moral high ground. Our adversarial system along with the rules and policies that drive it are the result of hundreds of years of experience. The ultimate aim of the system is justice, though that aim is not often realized. <br /><br />Experience taught our predecessors that the aim is most often realized when the government has, as a primary concern, the goal of "doing justice" AND the power of the government is simultaneously opposed, tested, if you will, by a vigorous defense. <br /><br />The government is thus charged with maintaing a focus on justice while defense attorneys are given a DIFFERENT charge. If the advocate for government focuses only on justice and the defense attorney focuses only on defending, our system, we have learned, will convict fewer innocent people.<br /><br />Unfortunately, a side effect is that some guilty people may go unpunished when this procedure is followed, also. But we, as a society, long ago decided that j was better that ten guilty people should go free than that one innocent person should be convicted. <br /><br />But an even more unfortunate situation has come from the increasing influence and control of the "justice" system by those who do not understand either the non-reciprocal distribution of duties outlined above or the reasons that lead to it. As we increasingly find prosecutors abandoning their duties because they confuse "doing justice" with winning and as we come to believe there is something ethically wrong with vigorously defending people "we know" (I say that with deliberate sarcasm) are guilty, fewer of the guilty may escape incarceration....but so, too, do fewer of the innocent, wrongly accused.Rick Horowitzhttp://www.rhdefense.com/blognoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-36215240005055616442009-11-25T12:07:49.210-05:002009-11-25T12:07:49.210-05:00Scott,
I'd read Jeff's post above before ...Scott,<br /><br />I'd read Jeff's post above before you suggested I do so. I generally read all of Jeff's posts. I'm not really interested in parsing or defending any further the post at issue by the "aspiring criminal defense attorney." It left a lot to be desired, and Jeff's criticisms are valid. She took on a big subject in a short space, which opened her to just these sorts of criticisms. To me it's not obvious from her short post that she thinks the morals of a criminal defense lawyer are other than moral, or that a criminal defense attorney should seek rehabilitation for her client over an acquittal or dismissal. <br /><br />But I will admit, and I don't do this as often as I should, that after rereading her post again it seems worse than before. The tone of it and the emphasis of it seems all wrong. It's confused and confusing, and it's not really clear what she's saying. She probably deserves the heat she's taken, and hopefully it will serve to open her eyes a bit. Maybe she really does think that if she comes to represent a client she believes is guilty she should automatically start considering how she can help the state rehabilitate him rather than how she can defend him. Maybe I just found it too hard to believe that, after graduating from law school, she would really think that.<br /><br />So the basic point of your post, that she should have thought a little harder before exposing her half-baked ruminations to public scrutiny, is well-taken.<br /><br />As for my own half-baked post on this subject, I stand by my basic point, although I will give it more thought: we shouldn't be too ready to concede to prosecutors, before a jury or the public, the moral high ground by stating that only prosecutors are properly concerned with "justice."<br /><br />BTW, please do tell how you came by "Simple Justice" as the name for your blog, so that myself and other don't continue to get the wrong idea.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-22493940826537109702009-11-24T17:20:52.926-05:002009-11-24T17:20:52.926-05:00But what do us old guys who've been doing this...But what do us old guys who've been doing this for years, for decades know?shghttp://blog.simplejustice.usnoreply@blogger.com