Blonde Justice recently posed a great question: Can the Defense Ever Be Pro-Proseuction? Her hypo is about a fellow defense attorney “who had recently been a crime victim.” He decided to give a statement, agreed to testify against the arrested suspects, etc. I’m not sure what she means by “crime victim,” but assuming she means that this PD was the person directly injured, either physically or financially, by some breach of the law, then ok; the hypo doesn’t seem that difficult. Of course the PD can choose to cooperate with the prosecution. Possibly “Harry” said it best in his comment to BJ’s post:

Defense attorneys don’t exist to help criminals, but to prevent innocent people from being convicted. The only way to do that is to give the best possible defense to everyone, both guilty and innocent.

Any alternative would require deciding upfront who was innocent and who was not. But if there were a way to do that, no court case would be needed at all.

I am very surprised that a bunch of criminal defense attorneys, of all people, would fail to understand this basic principle.

That Lawyer Dude offers another fascinating perspective:

Good criminal defense attorney’s do not argue for leniency. They argue for a sentence that fits the crime. They argue for another opportunity. They argue to keep the defendant from being just another number and so that if the defendant is convicted of a crime he committed, he is able to rejoin society with as little baggage as possible.

Defense lawyers who bleed all over a courtroom are terrible lawyers. They have failed to take the other parties needs into consideration and as a result rarely “win” a fair or even a good sentence for their clients. Judges ignore them because they know that the lawyer will never be able to guide the court.

Once you’re at the point of arguing sentencing, this seems true — it’s not about leniency, it’s about fairness and a sentence that fits your particular client’s actions and situation in life. By the time questions of lenience v. fairness arise, your client has already entered a plea of guilty or been found guilty at trial; you’re in the sentencing phase. Prior to that time, the battles are different. Unfortunately, public defenders end up spending a lot of their time and effort and energy in the sentencing phase and it takes an incredible amount of work, experience, and wisdom to be effective in that zone day after day, and even multiple times in the same day.

I could go on and on but you should just go read the post and all the responses. Excellent stuff. (As usual from Blonde Justice!)

But returning for a moment to the original question: Should a PD cooperate with the prosecution when the PD has been injured by a breach of law? Sure. I don’t think I would do so in every case; it would depend on the crime and the circumstances, but I don’t think a public defender is per se a hypocrite for deciding to help the prosecution on a case where the PD has been directly injured.

Here’s a twist on the hypo, though: Should a public defender who has not been injured by a crime but has witnessed something relevant to a crime cooperate with police? Should she give a statement? And even more important, should she invite the police into her public defender office in order to give the statement during work hours?

Thoughts?

This entry was posted on Monday, May 5th, 2008 at 7:47 am and is filed under Crimlaw. It has had 180 views. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.