Defending the Guilty
In 1840, Lord William Russell, an English nobleman was murdered. There was strong evidence that his butler, Courvoisier may have perpetrated the crime. Despite the strong circumstantial evidence, the butler maintained his innocence and was duly represented by his lawyer, Charles Phillips. During the court proceedings, Phillips vigorously defended his client as expected. At this point, Phillips would have already known the guilt of his client. In fact, it would be reasonable to believe that Courvoisier might have already admitted his guilt to his lawyer before the later accepted the case. During the course of the trial, Charlotte Piolaine, an unexpected witness, appeared. Phillips knew that Piolaine’s testimony is crucial in indicting his client and so during cross-examination, he did everything to discredit the witness’s credibility not only on the merits of her testimony but has gone as far as to conduct a character assassination. Phillips tried to stray the jury’s attention by attacking Piolaine’s reputation implying that she is a liar and was operating a gambling den. Despite Phillips’ efforts, the case was decided against his client and the jury found Courvoisier guilty of murder. Though the court’s decision gave closure as far as the victim, the accused and the witnesses are concerned, for Phillips, the case presented a different scenario. Word got out that Phillips has known all along that his client was guilty and people condemned his aggressive defense for his client. Phillip’s case is not an isolated scenario. The lawyer Steven Feldman of San Diego received similar condemnation in the defense of his client, David Westerfield. Westerfield was accused of “abducting and killing a little girl named Danielle Van Dam”. The girl’s body was not found and Westerfield maintained his innocence. During the court proceeding, it was agreed by the prosecutor and the defense that death penalty would not be served as long as the defense would disclose the location of the girl’s body. Before a deal was officially struck, the girl’s body was found and trial commenced. Obviously, Feldman was well aware of his client’s guilt as he would not have made a bargaining plea for his client in the first place. Even so, Feldman made an all-out defense for his client and in a similar scenario as the Phillips’ case, proceeded to discredit the girl’s parent reputation implying that the parents were conducting sex parties in their home and suggesting the possibility that one of the guests may have done the crime. In the end, Westerfield was convicted while Feldman was outrageously criticized by the public. Such scenarios are common in a practicing lawyer’s experience. Most lawyers have their fair share of cases wherein their client’s guilt was known and yet they still proceed vigorously to defend them.
In some cases, a client does not confide to the lawyer about his guilt while the lawyer does not intensely seek to know his client’s guilt. As observed by Portman, “Defendants who have done the act that forms the basis of their criminal charge often wonder whether they should tell their lawyers. Even if they remain silent, they are concerned that their lawyers will believe that they are guilty, and either won’t want to represent them, or will do a poor job”. In most of these cases, lawyers could discern whether their client is guilty or not. It should be noted though that the justice system, with its due process clause, provides two possible guilt scenarios; the factual guilt where the defendant is truthfully guilty and the legal guilt where the defendant’s guilt has to be proven in court. Most people get the notion that the lawyer’s job is to save their clients from their legal guilt in any way possible in the legal system. This observation is actually not far from being true as most lawyers give credence to legal guilt more than the factual guilt. It is also interesting to note that the legal system in most democratic countries including the U.S. is adversarial. In an adversarial legal system, the burden of proving a person’s guilt lies heavily on the ability of lawyers to present their client’s case in court. From the gathering of evidence, bargaining of pleas and cross-examination, the lawyer’s role could not be dismissed as he is accountable to the outcome of the case. As lawyers and law firms are pitted against each other, competition could not be avoided which lead to a great desire to win the case. There is also a factor of monetary consideration. In an adversarial system, the resources of a client could have a significant impact in the outcome of a case as he gains more capability to hire expensive lawyers and well-paid lawyers become inclined to agree to a client’s wishes. An ethical problem therefore arises out of these considerations. The question is, are lawyers morally obliged to defend a guilty client and to what extent?
Related Ethical Theories
There is no absolute resolution to an ethical issue. Obviously, what others may consider as ethically correct could be ethically wrong in another’s perspective. Over the years, scholars of ethics have compiled established ethical theories to serve as a guide in making ethical decisions. Most of these theories govern the ethical standards adhered by varied disciplines and professions. The ethical dilemma presented above can be analyzed using established ethical theories of utilitarianism, deontology and rights. The theory of utilitarianism states that in resolving ethical dilemmas, people should consider the greater good. This implies that “an act is morally acceptable if it produces the greatest net benefit to society as a whole”. The significance of this theory is that it gives more importance to the end rather than the means. Proponents of this theory would rather do what is considered by many as morally wrong as long as it benefits the general population in the end. The utilitarian moral principle places little significance to an individual’s welfare. Rather, it is inclined to prefer the welfare of society as a whole. For example, utilitarianism would agree to the idea of subjecting people to medical experiments though it might cause death if the purpose of this experiment is crucial in curing numerous people. Martyrdom is also an extreme example of a utilitarian point of view where an individual sacrifices himself for the benefit of many. Deontology, on the other hand, believes that a moral dilemma can be resolved if people adheres to their obligation and duties. This moral reasoning is common to soldiers who justify their actions in times of war. Deontology places high regards to actions rather than consequences. Deontology judges an action based on the absolute good and not on the relative good. Lying, for example, is considered as morally wrong even if it was done to save a person’s life. The theory of rights rely its moral principle on the statutory and unalienable rights of man. Proponents of this theory believe that “human beings have certain fundamental rights that should be respected in all decisions: the right to free consent, privacy, freedom of conscience, free speech, and due process”. The rights theory is governed by four basic elements known as ‘the Hohfeldian incidents’ which was named after Wesley Hohfeld, the American philosopher who formulated this theory. The four elements are privileges, claims, powers and immunities. A person exerts his right due to privilege if he has no duty to do what he desires to do. In trying to explain privilege, Wenar makes a simplistic example of a person who finds a shell on the beach. Whether the person picks up the shell or not is his privilege as he has no obligation or duty to do or not to do so. The person, therefore, has a right to pick up or not to pick up the shell due to privilege. A person can also exert his rights due to claims. A claim is a contract which binds a person to another and makes the later duty bound to perform what is stipulated in the contract. For example, an employee has the right to be paid for his services due to his claim on his employer as stipulated in their contract or agreement. A person can also exert his rights due to power. The vested power on a person gives him the right to do things that are covered by his power. The president, for example, has the power to veto legislation or to stop a death penalty execution. Power, therefore, gives him the right to do these things. Lastly, a person can exert his right due to immunity. Many rights such as the freedom of speech and freedom of religion are based on this element. When an entity has no power or ability to suppress an activity of another entity, it results to immunity and the later gains a right for that particular activity.
Ethical Solution to the Lawyer’s Dilemma
The utilitarian theory would present a conflicting interest in resolving the lawyer’s ethical dilemma of whether or not it is ethically correct to represent a guilty person in court. Based on the assumption that the end would justify the means, the lawyer would find it ethically correct to represent his client in court even though if doing so is morally wrong. The act of defending a guilty client would imply that the lawyer would have to deny or lie about the charges though he knows the truth of the matter. His intentions, therefore, would be inclined to winning the case as that would justify his means. On the contrary, utilitarianism requires him to ask whether the result of his action is for the common good. If based on this ground, his justification for the end would fail since the general population requires him to serve justice and not to serve his client’s end. Deontology, on the other hand, is an absolute ethical perspective. Based on this moral principle, the act of defending a guilty client is tantamount to deception, coercion or concealment of truth. A lie is a lie and if it is morally wrong, the lawyer has no choice but to abandon his client. A lawyer is duty bound to serve justice which supersedes his duty to his client. Deontology, therefore, would be intolerant to the possibility of a lawyer defending his guilty client.
The rights theory, on the other hand, provides a leeway for analysis of the lawyer’s action. It does not seek a majority’s approval but rather, on what is stipulated by the rule of law. It should be noted that the defendant, however guilty he might be, has certain unalienable rights provided to him by the constitution. First, he has the right to due process. Under the Fourteenth Amendment of the U.S. Constitution, it states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In this clause, the constitution clearly states that even the guilty is entitled to a court proceeding unless he waives his right to do so. This right to due process is consistent with the Hohfeldian element of privilege. A client may waive this right yet he is not obliged to do so. In the event that he raises his right for due process and seeks for representation, his guilt does not alter this right. The lawyer, on the other hand, may be duty bound to uphold justice yet his actions should be guided by the constitution. Though he may wish for justice to be served, he must submit to the processes of the legal system in which he operates. Unless the rules are amended, the rights moral principle requires him to play by the rules. In this case, he does not commit ethical violation should he represent a guilty client even though he knows his guilt since the law has provided his client the right to seek legal proceedings. It should also be noted that the lawyer has the privilege to accept or withdraw from the case that his handling. This privilege gives the lawyer the right to do what he wishes to do without suffering any consequence from his actions. A lawyer may be permitted to withdraw from the case for various reasons which includes reasons such as “the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent”, “a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent” and “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”. If the client fails to cooperate and answer questions that would help the lawyer to successfully represent him in court, the lawyer has an option to terminate his services with due notice to the court. Even so, it is still the lawyer’s prerogative if he wishes to represent a client even if the client does not fulfill his obligations.
As the reasons and justifications for representing a guilty client have been laid based on the rights ethical theory, this question remains; how would the lawyer represent his client in court? A person under oath is liable for perjury. As in the case of a guilty client that does not admits his guilt, the lawyer could be liable to such criminal offense as an accomplice. A lawyer, therefore, risks himself whenever he submits to client’s wish to commit perjury by representing him in court. In order to avoid this problem, most lawyers “take care not to elicit a client’s confession, so they don’t know for sure the client will be lying”. By doing so, a lawyer can vigorously defend his client not on the grounds that he is guilty but on the grounds of proving his client’s guilt. As stated by Portman, “A good criminal defense lawyer asks not, “Did my client do it?” but rather, “Can the government prove that my client did it?” No matter what the defendant has done, he is not legally guilty until a prosecutor offers enough evidence to persuade a judge or jury to convict”. However, it could not be avoided that in some cases, a client would confess his guilt to his lawyer and insists on the lawyer to defend him at all cost. In this case, three responses are possible. One possible response would be, the lawyer makes a weak defense of the case and allow his client to be judged as guilty. However, this response would destroy a lawyer’s reputation on being a good defense attorney. Another response would be, to vigorously defend his client at whatever end. This response, however, would place the lawyer at risk of malpractice and expose him to public condemnation as what happened to Phillips and Feldman. Lastly, he could present a legal option to his client, give him a candid opinion about the merits of his case and look for a fair resolution to his client’s issue. As eloquently stated by Frieling, “If our goal as defense attorneys is to achieve a fair result, and if the prosecutors live up to their obligation to "do justice," we will find that instead of constant war, we are working together to fairly resolve a case”. For lawyers, it is not always winning the case that matters. Most of the time, it is how the case was handled that matters. Litigation skills are not the only skill that a defense lawyer should master. Equally important is his ability convinces his client to agree on his terms and on what he sees as a fair resolution to his client’s issue. It is interesting to note that most lawyers find it easier to deal with guilty clients rather than innocent ones as the latter is quite demanding and unable to compromise. For reasons indicated by Frieling, he pointed out that innocent clients believe that; they should not have been charged, the system will protect them because they are in fact innocent, and they should certainly not have to pay a defense attorney to defend them, because that is a privilege reserved for the guilty. Who can therefore blame a lawyer if he decides to defend a client who is factually guilty? Aside from the fact that he is only doing his job as what the constitution stipulates him to do so, he is only exercising his privilege as a citizen who is also entitled to his rights. His actions may violate moral codes when based on other ethical theories but then ethics is relative and there is no absolute standard for moral judgment. As stated by Field, the goal of ethics is “not to give people good character”. Rather, it is the basic understanding of moral principles that would help guide an individual in making a choice for his actions.
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