The defense lawyer of Dominique Strauss-Kahn told the press that the sex his client had with the chambermaid was consensual. The press reported this statement as if it had the same standing as the claims by the maid that she was raped, leaving the matter in a he-says, she-says limbo. Readers should note that lawyers feel free to concoct any theory they want and make any statements, true or false, that will help their clients when talking to the media.
Floyd Abrams, an eminent lawyer, wrote in The New York Times that in our current climate, we should not be surprised when lawyers state things that "have nothing to do with the truth," because we should know that they will say anything that might help their client. It's like sitting down to play poker -- one should expect the other side to bluff.
But courts are not a game. Lives, liberty, and fortunes are at stake. Justice is not served by both sides playing the court for all they can. Can we find ways to maintain our adversarial system, but also expect lawyers to truly live up to their responsibilities as officers of the court?
In the quest to make lawyers a bit more communitarian -- to enhance somewhat their responsibility to the community -- I posed a hypothetical case (based on an actual one) to several legal authorities. Eight women charge that a physician sexually molested them while he had them connected to a wire that he claimed would endanger them if they moved. The defense argues that the women fabricated the whole thing, conspiring to extort money from the physician. No evidence of any kind is presented to support this claim. Assume, I suggested, that the lawyer made up the whole defense. Should this be allowed?
All those approached responded that lawyers' only obligations are to their clients. George Bushnell Jr., former president of the American Bar Association, put it starkly:
While your report of the sexual molestation defense on its face is irresponsible, I cannot agree that the rights of the defendant should in any way be changed or modified. Rather it is my judgment -- and conviction -- that only through full protection of defendants' rights is the total community best served. For it is only by emphasizing the rights of the least of us that the rights of all of us--the rights of the total community -- are preserved.
Alan Dershowitz, in his novel The Advocate's Devil, put the following line into the mouth of his legal maven: "In this game, there's only one bottom line -- winning -- whether the client is black or white, innocent or guilty."
The rush to not reform is astonishing both because justice is too often denied in the existing system, and because there are already several rules on the books -- in the law itself, and in the ethics of the profession -- that curb lawyers in the community's interest. For example, if a lawyer knows that their client is about to commit perjury, the lawyer is supposed to stop the client or alert the court. (Many lawyers circumvent this role by warning their client not to tell them more than they need to know.)
Similarly, the Supreme Court ruled that lawyers may not elicit what they know to be a false answer from their clients. True, lawyers regained much of their wiggle room by narrowing what is considered "eliciting." But, still, there is some limit on what lawyers can do when it comes to bearing false witness.
Why not consider strengthening these rules a bit in the interest of justice and the community? For instance, how about prohibiting lawyers from pleading a client not guilty when they know he is guilty, and similarly, prohibiting lawyers from challenging the other side's veracity when they know they are telling the truth?
Nobody questions the need to protect the rights of the defendant. But these rights do not include allowing those who are guilty to walk because they have as lawyers the best fiction writers money can buy. The press would do well, when lawyers make outrageous statements, to add: Remember, lawyers feel free to lie when it serves those who pay them.
Amitai Etzioni is a University Professor at The George Washington University and the author of Law in a New Key (Quid Pro Books 2010).
Lies are an important part of the game: again, by intent. This is one of the great ironies of our crimimal justice system since perjury is a felony which can be enforced against a defense witness but a prosecution witness is virtually never held accountable for it. Did I forget to tell you this is a rigged game? The author correctly notes that the Supreme Court has ruled that prosecutors cannot elicit lies from a witness; however, he fails to mention that this ruling is usually ignored in state courts. Judges, with a keen eye for the conclusion, conveniently turn a blind eye to prosecution and defense indiscretions. They routinely ignore violations of process and ethics for the sake of expediency. Consequently, the guilty occasionally skate and the innocent often get convicted.
"The forensic evidence, we believe, are not consistent with forcible encounter," Benjamin Brafman told Criminal Court Judge Melissa Jackson in the course of arguing that his client should receive bail on charges of attempted rape and sexual assault.
Brafman gave no details and made no other mention of this evidence, and defense lawyers warned that it may be too soon to try to read the tea leaves based on Brafman's brief words.
Nevertheless, his words have sparked widespread speculation that the International Monetary Fund chief will argue that any sexual encounter between him and a chambermaid on May 14 at a New York hotel was consensual.
And based on the few details known from initial reports, defense lawyers said the case against Strauss-Kahn appears far from a slam dunk.
"There's a lot of evidence that someone was upset," said Daniel Arshack, an attorney at Arshack, Hajek & Lehrman in New York. "But there's very little evidence that a crime actually occurred."
Is this the statement that Mr. Etzioni uses to call Mr. Brafman a liar? That the forensic evidence is not consistent with a forcible encounter? What evidence does Mr. Etzioni have that Mr. Brafman is lying? Has he seen the forensic evidence?
I suggest that Mr. Etzioni and the Huffinton Post be careful about calling people a liar in the future.
jj
We have all but lost this right. The media jumps on the bandwagon and ignores the rights of the accused.
The norm in criminal cases is for the media to only report what one side says.
The police do not hesitate in taking charges solely based upon the statement of one unreliable individual.
Frequently, there is no further investigation once one person accuses another, because the police feel their job is to determine if there is probable cause, not to determine guilt or innocence. Often other witnesses are not even interviewed by the police.
One accusation by some crazy or vindictive person often lands people in jail. This is the real danger, not the only person opposing the entire force of the government.
The maid has every incentive to say she was raped in order to sue someone who has deep pockets.
Contrary to what the writer states, it is a he-said, she-said.
Furthermore, lawyers are not "free to lie". They are governed by ethical rules and could lose their law license if they violate their ethical duties.
The police on the other hand, are free to lie. And the press goes on every witch hunt with them.
It is interesting in the instant case that Mr. Strauss Khan's attorney chose to not only speak, but advance a theory of his case that concedes a sex act had taken place. However, since the media was "convicting" his client it was important for the attorney to speak before the prospective jury pool was forever poisoned by publicity.
As convincing as the evidence in the press may be, just remember: as this poster states, the media gets its information from the police affidavit and tidbits leaked by the prosecutor's office. Also, what makes a more marketable headline? IMF chief allegedly rapes lowly chamber maid? Or, chamber maid allegedly falsely accuses IMF chief?
This isn't just a crime story.
However, your latter suggestions go far beyond limiting lies to infringing the essential rights of the accused.
"For instance, how about prohibiting lawyers from pleading a client not guilty when they know he is guilty" - You are suggesting that the lawyer take on the role of the jury or judge. A lawyer should not be the one to decide that the client may not plead not guilty and put the prosecution to proof. That is the right of the accused and our system would be gravely damaged, in my view, if lawyers began play the role of the arbiter of guilt.
"and similarly, prohibiting lawyers from challenging the other side's veracity when they know they are telling the truth?" I see big problems when lawyers get too creative and begin to craft scenarios that are not backed by the evidence. But the accused has the right to challenge the evidence and great care should be taken to protect that right.
And that, sir, is the death of the profession as a social institution, devolved to hired guns, outlaws and liars.
I don't know if Mr. Strauss Kahn is guilty or not. I wasn't there and neither were you. Yet you, without anything other than the information the state provided to newspapers. Were you this certain about the charges against the Duke lacrosse team?
You clearly know nothing about criminal law. For example, I cannot both elicit a false statement from my client while simultaneously not first determining what he will say. This is why the ethical rule prohibiting perjury works.
Please. Next time talk to a criminal defense attorney before you write about criminal defense.
Shameless.
First, I am a public defender and do not represent people just to collect a fee. But I'll speak for many of my fellow defense attorneys who do, as well as my self. You are so certain we lie, obfuscate and distort for no other reason than you read that somewhere, or, more likely, saw it on TV; otherwise known as most people's reality.
The biggest flaw in your arguments is your belief of what the "truth" is. As I pointed out, I was not at the Sofitel and neither was Professor Etzioni or any poster here. Yet we seem to be so sure that what we read in the paper about this or any crime is the truth. Worse, you posit that my client walks into my office professes his guilt and asks me to get him off. Yes, wouldn't it be pretty to think so.
I don't ask my client's if they are guilty or innocent, but not for the reason Professor Etzioni, or any of you, think. And if you actually understood the criminal defense legal system you would understand how rarely, if ever, defense attorneys lie, distort or obfuscate. For reasons that should be obvious, being twelve jurors chosen from the community, we develop a theory of our case, try to cut through the haze of obfuscation, distortions, confused, biased or dishonest witnesses and try to bring as clear a picture as we can discover from what we have to work with.
Surely we all agree.
How about the prosecutor side of that case, where credible information comes that the women in question are lying? I am sure there are real cases where that happens and the prosecutor somehow misinforms or disinforms (if they inform at all) the court about the new revelations thereby wrongly impacting the perception of guilt or innocence by those who decide (judge or jury)?
As a human being, the lawyer can lie all they want, but as a lawyer -- we expect better, especially given the hourly rate.
Enjoy the moment, in all of its insubstantial, inconsequential , substantial, and consequential glory and dreariness, hope and despair, life and death, ups and downs.... round and around until there is no consequence for the inconsequential, and the lack of substance in that substantial is proven or disproved over time, over space, over place and face and all the things that life brings on a momentary basis to face us and challenge us and demand that we as a people, as an organism coveting life, learn how to get along, how to bring ourselves along on the moral continuum, without need of disaster, pain and grief.
Enjoy the moment -- it's all we have.
My tennis racket now out, let me preemptively hit the foolish ball back with some top spin. I write as a meditation of love. If you do not get it -- I get it, now get to stepping, or better yet -- type on by. Just make believe that you don't see the tears, feel the fear, think about the shadow ever near, just let me opine, on the tears and sadness, the happiness and the gladness of those who live and die. Those such as yourself.
Hey Dennis!