Of Nosy Cops and Children Saved
I saw this story recently in the WSJ and thought it had two lessons worth noting, one about when government agencies should intervene in family matters and one about when standard issue thinking about the obligations of criminal defense lawyers runs into basic decency.
It’s about a little boy who went to a diner with his family. What happened next is both grotesque and uplifting.
Here it is, in detail:
There is a lesson in what [happened in a family-style restaurant in Orlando], and it starts with what a woman named Flaviane Carvalho saw.
She was serving meals to a table where a family of four was sitting. Three of the people—an adult male, an adult female, and a four-year-old girl—were sitting on one side, seemingly enjoying themselves. The boy was on the other side, not being spoken to and not speaking. He was the only one for whom the adults had not ordered food. Ms. Carvalho thought this was odd.
Then she noticed bruising near the boy’s eye, and a cut above his nose. And more bruising on his lower arm. She could have done nothing.
But she couldn’t just let it go. On a piece of paper, in big letters, she wrote: “ARE YOU OK?” She stood behind the table and held the paper up so only the boy, alone on the other side, could see it. He made a motion with his head. She sensed he was afraid. So she wrote another message: “DO YOU NEED HELP?”
The child nodded yes.
Ms. Carvalho thus became the first person that night to do the right thing. She went to a phone and called the owner of the restaurant, Rafaela Cabede. She said what had happened. Should she call the police?
Ms. Cabede didn’t hesitate. If Ms. Carvalho’s hunch turned out to be mistaken it could have meant trouble for her restaurant. Still, she said to call 911 right away.
Now two people had done the right thing. Ms. Carvalho called 911, told the dispatcher what she had observed and, according to the tape, said: “I don’t know what to do. Can you give me some advice?”
The 911 dispatcher, Fahad Mumtaz, did more than offer advice. He said the police were on their way.
Three people had done the right thing.
Orlando Police Officer Brett Brubaker arrived. After speaking with Ms. Carvalho he approached the table. He told the man at the table— Timothy Lee Wilson, the boy’s stepfather—he wanted to talk with the boy privately. Officer Brubaker thus became the fourth person to do the right thing.
The officer and the boy walked outside. At first, the boy, who was markedly underweight, said his bruises were from an accident. But another officer with experience in cases of battered and traumatized children— Sgt. Sonja Saunders —soon arrived and patiently continued listening to the boy, becoming the fifth person that night to do the right thing.
From Officer Brubaker’s official report:
“I immediately noticed bruising to the right side of his face and what appeared to be a healing wound on the bridge of his nose . . . Upon further observation, multiple bruises were seen on his right arm starting from his shoulder all the way down to his wrist . . . [The boy] stated Timothy Wilson has recently been beating him with a wooden broom, back scratcher and his closed fists. [The boy] stated he beat him with these when he does something wrong . . . [He] also stated Timothy Wilson would punch him in the chest with closed fists.
“It should be noted that [the boy] was in pain just by simply rolling up his jacket sleeves to show his injury . . . [He] complained of chest pain and was hunched over while on scene . . . It should be noted, [Timothy Wilson] weighs approximately 325 pounds” and the boy weighs “approximately 60 pounds.”
An ambulance was summoned, and the boy was transported to a hospital, where extensive bruising was found beneath his clothes, and on his ears. Timothy Wilson was arrested on the spot. Follow-up interviews with the boy by detectives led them to allege, according to police and court documents, that the stepfather had fastened straps to the child’s ankles and neck and had hung him upside down from a door; that the boy had been beaten with various objects, handcuffed to a moving cart, ordered to do military-style exercises for 30 minutes at a time and, if he failed, punished by further beatings and by not being allowed to eat.
Prosecutors from Florida’s 9th judicial circuit charged the stepfather with 10 felony counts including aggravated abuse, false imprisonment and neglect; his wife, Kristen Swann, was charged with five felony counts of abuse and neglect. Both have pleaded not guilty. The boy and girl, police said, are now safely away from their purported guardians.
If any of the five people that night had decided not to get involved, according to Detective Erin Lawler, “that little boy would probably not be with us much longer….We probably would have been talking about a potential homicide investigation.”
But all five instantly knew what they must do. Because they did, Timothy Wilson and Kristen Swann await trial. And that boy is alive.
We often hear that the police and Child Protective Services are too eager to intervene in difficult matters that should be, and years ago would have been, left to families to sort out. As it happens, I largely agree with that view. Most of the time, the workings of family life, no matter how deficient when seen momentarily from the outside, are going to be better than the mechanics of the state, no matter how well intended. And there are plenty of horror stories about government placement of children in foster care, some even worse than this one.
The problem is that the hands-off view tends to get infused with libertarian-like ideology and taken to an extreme, where it becomes willful and cruel. Had it prevailed in this instance, the chances are that this kid would have been tortured to death — which, to be blunt, is what was happening to him before the waitress intervened.
I’m not smart enough to know where the line should be drawn. The best I can do is say that if your instincts tell you that a situation involving children just doesn’t look right, you can’t just walk away. Yes, there is a risk of getting it wrong, and of causing embarrassment, or worse, to yourself and blameless other people if you’re making a mistake. But the risks on the other side are worse.
The other lesson here involves my recurrent questions about what is permitted and/or required in criminal defense. We don’t know everything that happened here, but we know enough to be sure of at least two things, to wit (1) that the adults in this story have significant criminal liability and deserve severe punishment; and (2) that the boy who was with them cannot safely be returned to that family.
It’s fair enough, I suppose, for a criminal defense lawyer to put forward whatever sorry mitigation he can dig up (but not manufacture, which is what more typically happens). But does any normal person think the plea of “not guilty” is anything close to the truth? Because the truth is really important in this story. It’s really important in every story, to be sure, but its importance is more obvious here because of what may happen — the reunion of a helpless child with his torturer — if the “not guilty” saga wins out.
At some point, the Officially Approved moral (and factual) agnosticism of criminal defense has to give way to basic human decency. This story might tell us where that point is to be found.
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So you favor guilt by allegation? This sounds like a horrible case based on the allegations and if the state can prove them by the consitutionally required standard of “beyond a reasonable doubt,” guilt and punishment will follow. In fact, even if the evidence is quite debatable, the defense attorneys here will sure feel duty bound to advise these defendants to plead guilty because they are likely to secure a lower sentence in exchange for giving up their constitutional rights.
But do you expect a defense attorney to plead these clients guilty before even having a chance to review and conduct an investigation of the allegations? I believe many of the Jan 6 rioters have pleaded not guilty despite their crimes being on videotape (often thanks to their self taping). And these rioters imperiled not just children, but our constitutional democracy. Do you also think decency calls for lawyers to be giving up the adverarial system of justice in the Jan 6 cases by just pleading their obviously guilty clients guilty? And isn;t this rightfully a client’s decision, not a lawyers? (I know you are used to, as a former prosecutor, thinking you know what’s good for any and everyone. But a defense lawyer cannot ethcially plead a client guilty if he or she wants to plead not guilty, no matter what the lawyer might think of that choice.
Put simply, it seems you just do not believe in the adversarial process or understand ethical defense respresentation in such a system. Perhaps this is only in cases involving child abuse, but I am left wondering what other types of cases you think call for guilt by
allegation and inquisition rather than by the jury trial right that the Framers obviously thought we so very important.
1. “So you favor guilt by allegation? ” Wasn’t aware until now that numerous bruises and wounds all over the kid’s body were “allegations.” Where are you getting that? Oh, wait, I know, he fell off the swing — 50 times!!!
2. “In fact, even if the evidence is quite debatable, the defense attorneys here will sure feel duty bound to advise these defendants to plead guilty because they are likely to secure a lower sentence in exchange for giving up their constitutional rights.”
As I have previously argued, the canons of ethics should make it explicit that a defense lawyer cannot urge or help a client plead guilty if he knows or has strong reason to believe that he’s innocent, https://www.crimeandconsequences.blog/?p=2845 (final paragraph). But if the client is in fact guilty, I think it preferable for all involved to be truthful, even realizing how little regard the defense bar has for the truth.
3. Why do you reflexively take the side of the 325 lb. torturer over the 60 lb. torture victim? You are not a judge and this blog is not a courtroom. In the setting we have here, nothing requires you to do a waltz with the presumption of innocence, which, as you cannot help knowing, is preposterous in this instance.
4. “But do you expect a defense attorney to plead these clients guilty before even having a chance to review and conduct an investigation of the allegations?” I have long since given up having expectations of defense attorneys, although every now and again some of them are downright heroic (see, e.g., the defense attorneys in the Duke lacrosse rape hoax).
5. “I believe many of the Jan 6 rioters have pleaded not guilty despite their crimes being on videotape (often thanks to their self taping). And these rioters imperiled not just children, but our constitutional democracy.” This is why I called within hours for the Trump DOJ to bring the full weight of the law against them. https://www.crimeandconsequences.blog/?p=2710
6. “Do you also think decency calls for lawyers to be giving up the adverarial system of justice in the Jan 6 cases by just pleading their obviously guilty clients guilty? ” I think telling the truth is better than not telling it, you bet. Isn’t that what you told your kids when they were growing up? Was that bad advice?
7. “And isn;t this rightfully a client’s decision, not a lawyers?” Yes, I do wish clients as well as lawyers would be more truthful. Guilty as charged!
8. “I know you are used to, as a former prosecutor, thinking you know what’s good for any and everyone. ” You do get carried away every now and again, don’t you? But not to worry. We all do.
9. “Put simply, it seems you just do not believe in the adversarial process or understand ethical defense respresentation in such a system”……………says the fellow who spent most of his professional life in academia to the guy who spent most of his professional life litigating (successfully, if I don’t say so myself) in that self-same adversarial system.
Far out!
10. “Perhaps this is only in cases involving child abuse, but I am left wondering what other types of cases you think call for guilt by allegation and inquisition rather than by the jury trial right that the Framers obviously thought we so very important.”
Now that you mention it, I dearly hope the state refuses a plea bargain here and holds a trial. I want two specific things to happen. First, I want this wretched excuse for a human being to be shown at a public trial to be the person he is. Second and even more important, I want this child to be able — in peace and safety for once in his life — to be able to point the finger at his tormentor and detail every last horrid act that was done to him.
And at sentencing, I want him to be able to do it again, notwithstanding your pals in the defense bar who spent years trying to muzzle victim impact statements. All because of their, ya know, compassion and all.
One other note I think should be made here. When you say, “I know you are used to, as a former prosecutor, thinking you know what’s good for any and everyone,” you disqualify yourself as a plausible source for writing guidelines for prosecutorial behavior, for transparency or anything else. Someone that deeply (and mistakenly) antagonistic to prosecutors is not going to be objective. And I won’t even get into the frequently arrogant and holier-than-thou attitude of the defense bar, an attitude maintained, remarkably but aggressively, while insisting that the truth can sit in the back of the bus because the best interest of the client (in beating the rap) is the ethical lodestar.
Bill, I am not “antagonistic” to prosecutors, rather I tend to believe that just about any and everyone who holds a position in just about any and every government positon has an occupational tendency to believe that they know what’s best for any and everyone. My belief in the tendency of government actors to have occupational paternalism lack needed skepticism is largely why I believe it is so very important for those individuals to have their exercice of power made transparent, regulated and checked in so many ways — and that is especially true of prosecutors who have extreme power to ruin many lives with a single court filing. If you think great suspicion of how powerful government actors oftentimes seem arrogant in how they use their powers prevents we from being “objective,” I suppose you would not a big fan of the objectivity of the Framers. (I have the same worries for judges, but their decisions are generally on the record and subject to public review. I do think defense attorneys (and even law professors) also can struggle with these problems, too — recall our friend from Monata, and I could provide many more examples — but they tend to have less power to ruin lives with a single document.)
That all said, I do readily acknowledge that I have a kind of bias and ignorance about the work of prosecutors beacuse I have never served as one. That is why I would be eager to work with former prosecutor to help develop rules for prosecutoria behavior. I readily recognize that professional history can produce a certain kind of perspective bias — and that is among the reasons why I am troubled that so many former prosecutors and so few former defense attorneys have been apointed to and/or are currently serving in positions in the federal judiciary (including the US Sentencing Commission). Do you share may sense that we need a lot more professional diversity on the federal bench in service to ensuring “objectivity” — or do you believe that prosecutors are uniquely “objective” while defense attorneys are generally “arrogant and holier-than-thou.” (And specaking of the US Sentencing Commission, I must note that I could not help but chuckle a little when you said that you think one stray comment makes me disqualified to write hypothetical guidelines for prosectors after it seems so many — including Senators — apparently concluded your comments made you disqualified to write advisory guidelines for judges.)
“Bill, I am not ‘antagonistic’ to prosecutors…”
Your prior remarks on this thread, and dozens of prior remarks here and on your own blog, overwhelming show that you are indeed antagonistic to prosecutors. It simply defies belief that you could say prosecutors think they “know what’s good for any and everyone” and then say, hey, no, gosh, I’m not antagonistic to prosecutors. I mean, c’mon.
The other problem with your observation is that it is at best undocumented and at worst ridiculous. On the other hand, how COULD it be documented? As Mr. Milani observes in his note, there is something of a broad brush problem going on here. And that’s putting it mildly. “Know what’s good for any and everyone”???
“And specaking of the US Sentencing Commission, I must note that I could not help but chuckle a little when you said that you think one stray comment makes me disqualified to write hypothetical guidelines for prosectors after it seems so many — including Senators — apparently concluded your comments made you disqualified to write advisory guidelines for judges.”
What an odd observation. Could you quote a single senator who had a negative word to say about me, on account of my comments or for any reason at all? I’ll wait.
In fact, the treatment of my nomination was identical to the treatment of everyone Trump nominated to the USSC, to wit, none of us got praised in the Senate, none of us got criticized in the Senate, and none of us got a vote in the Senate. Floor time is a precious commodity in that institution, and it went to judgeships. I’m disappointed — it would have been a neat job — but I can’t say that I would have made a different decision had I been doing the scheduling.
That’s life inside the Beltway. You win some and lose some, and never get to the plate in others. Miguel Estrada and I should get together for a drink (and probably will at some point, although he was treated a good deal worse than I was).
But I don’t want to end this response without noting what is by far the most striking thing about your answer. You talk about me, “government actors,” prosecutors, defense counsel, professional diversity and the Sentencing Commission. Anything missing?
Right. You have not a word to say about the little boy who nearly got tortured to death or the fellow who did the torturing. Now I understand that, in defense lingo, the little boy is a despicable “snitch,” and the torturer is a Hero of the Founders for exercising his rights and all. Yes, fine, I get it. But they might be worth a mention, no?
I don’t think you’re an uncaring man, not at all. But I do think you have a blind spot — a blind spot I’ve detected before in libertarian/defense-friendly types: The only thing that makes it into your field of vision is the government and its various and sundry evils. And of course it can do plenty of harm, no doubt about that. But to see ONLY that, and make this tormented, beaten and starved child disappear into nothingness. Sorry, that’s where I part company.
Crime victims are not nothing and they will not be treated as nothing on any blog entry I write. Neither will the thugs doing the victimizing. And I’m not going to pretend that Mr. Nicey’s (unquestioned) right to a trial makes him anything other than one of the most vile human beings I’ve ever had the misfortune to read about. There is law and there is basic decency, and both are going to get ink in the spaces where I’m writing.
P.S. You and I both know that there isn’t going to be a trial because his lawyer will do almost anything to keep this boy from telling his story to the jury on the witness stand. He’ll take whatever plea deal he’s offered (although, I repeat, I wouldn’t offer him any and would instead feed him every last one of his constitutional rights).
Bill, the focal point of your post was not the victim here — he was the focal point of the WSJ article — but rather the operation of social services and “what is permitted and/or required in criminal defense.” Interestingly, you do not ask whether social services (or other government actors) failed this boy by failing to intervene in this abusive relationship sooner, but you do question whether a defense attorney should be permitted to “let” his client enter a not guilty plea. (Notably, I found an article about the defendant reporting he was abusive to kids in a prior marriage but that “military police” ignored allegation by his first wife after a fight: https://www.dailymail.co.uk/news/article-9160633/Ex-wife-Florida-man-arrested-abusing-11-year-old-stepson-says-whooped-toddlers.html. Why not focus on the police who seemingly let this guy get away the first time?)
Talk about having a blind spot — you see this awful story and you somehow want it to be a lesson in the failings of responsible defense representation in an adversarial system. (Or to use your lingo: “The only thing that makes it into your field of vision is the [defense attorney role in our adversarial system] and its various and sundry evils.”) I am tempted to get even more snide and suggest you now read the news like the QAnon folks — they are looking for cues as to what Q wants them to do, you are looking for a way to attack defense attorneys for discharging their basic responsibilities. And that is why I keep asking, so far without any response, whether you ultimately want to jettison a commitment to an adversarial system only in this case or also in the Jan 6 riot cases or in lots of others cases.
I sincerely want to know how you would like our system of justice to operate if you think it unethical for a defendant and his lawyer to contest certain criminal charges. This seemed to be exactly what you are trying to explore in your post (“the obligations of criminal defense lawyers”; “recurrent questions about what is permitted and/or required in criminal defense”), and yet you keep avoiding answering directly any of my questions about what you are saying and suggesting. You say now that Mr. Nicey has an “unquestioned” right to a trial — but are you saying he should have to conduct that trial pro se because it is unethical for a defense lawyer to participate in a not guilty plea and/or at trial in this case?
Prosecutors get the unique and powerful opportunity of speaking for “the state,” meaning they, in a sense, get to act for any and everyone in this role. Consequently, I often fear they often think they know what’s good for any and everyone (sometimes without a full investigation). I would describe my view on that front as “skeptical” rather than “antagonistic,” but you can obviously use whatever labels you see fit. (And, as labels go, I do not want to repeat multiple hearsay regarding USSC nominations, I just know that your nomination in March 2018 but then not in Aug 2020 was striking.)
That all said, I think we are both keen on having less victimization. If your post was only intended to prompt a conversation about the awful realities of child abuse, I am more than happy to say that I feel quite sad for all the children abused by Timothy Wilson, and I am glad private folks finally saw what it seems military police missed so that there are no more victims.
Bill, I do favor the truth and truth telling, and I support the notion that the US system of justice is the best means to the truth and justice. Do you disagree? Unless you do, you should support the adversarial system enshrined by the Constitution which gives an accused defendant the right to require the government to prove its allegations to a jury and allows her to have a defense attorney by her side during that process. Your comment seems to argue that it is unethical and/or inappropriate in this case (and many others?) for a defendant to invoke this right by pleading not guilty (I am aware of no other way to invoke that right).
Are you really in favor of abandoning the basic tenets of the adversarial system in some or all cases? Are you asserting this system does not get to the truth? Please do explain how and when you want to elevate your vision of pursuing truth over the adversarial system that the Framers gave us. And rather than wordsmithing about “truth,” can you please directly address whether you think it unethical and/or inappropriate for a defendant to invoke the right to trial in some cases and/or whether you think “human decency” requires some lawyers to abandon clients who wish to invoke that right. And please answer that question with respect to the lawyers representing those charged in the Jan 6 riot whose guilt is captured on video for all to see. It is one thing to say that you wish factually guilty people will agree to plead guilty — though, strangely, it now sound that in this awful child abuse case you now want a trial — but it is another thing altogether to suggest that defense lawyers must or should demand that their clients plead guilty in some or all cases. (Many defendants already fear appointed attorneys are just agents of the state. Do you expct them to “force a plea” agents, and do you want to jettison an adversarial system in all cases or just some?)
Meanwhille, the article you quote uses the term “allege” which is why used the term “allegation.” Strangely, the guy in the ivory tower understands the importance of words and the presumption of innocence seemingly much better than does the guy who used to work at DOJ. Here is a reminder of what even DOJ’s press statements say at the end of complaints/indictments even in the January 6 charges:
“The charges contained in the complaint are allegations. The defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.” https://www.justice.gov/usao-dc/pr/two-members-proud-boys-indicted-conspiracy-other-charges-related-jan-6-riots; “An indictment is a formal accusation of criminal conduct, not evidence of guilt. A defendant is presumed innocent unless proven guilty.” https://www.justice.gov/usao-dc/pr/six-individuals-affiliated-oath-keepers-indicted-federal-grand-jury-conspiracy-obstruct. (But I suppose it is useful to be reminded why your nomination to serve in a judicial branch agency proved so controversial, especially since you express such disdain and disrespect for the work of defense lawyers.)
Bill, you paint with an awfully broad brush where defense attorneys are concerned. In your view criminal defense is characterized by, “walk or bust ethos” “working myopically to achieve here and now evasion of accountability of his client” or being, “merely a hired gun to beat the rap.” Moreover you say that defense attorneys routinely suborn perjury, manufacturer mitigation and other evidence all to obtain a, “trickster acquittal” all this while maintaining, an “arrogant holier-than-thou attitude” As to this last point, Mr. Otis I suggest you look in the mirror. You indiscriminate allegations of near universal disshonesty and complete lack of ethics on the part of the defense bar diminishes the credibility of your otherwise intelligent postulations.
Steve — Your first two sentences are correct, in large part because they quote me. The subsequent proposition that I say that defense lawyers routinely suborn perjury is incorrect (which is why you don’t use quotation marks — I never said it and don’t believe it). It’s quite true that I’ve said defense counsel work “myopically to achieve here and now evasion of accountability of his client” and constitute “a hired gun to beat the rap.”
As a generalization, do you dispute those last two characterizations? The Number One standard in defense bar ethics is to achieve the best legally possible outcome for the client, no? And isn’t that done by evading (or if that can’t be done completely, minimizing) here and now accountability for the charged offense? And isn’t beating the rap — i.e., getting a dismissal or an acquittal — the Holy Grail of defense work? It sure was when I was regularly in court.
“Trickster acquittal” is a nasty phrase, I’ll grant you that, but I have something specific in mind when I use it: The OJ Simpson case. OJ was guilty as hell of slicing up two people who had no chance against him (a star NFL player). And what got him off? Well, incompetent prosecutors were in the mix, yes. But by far the most memorable line from that trial was, “If the glove don’t fit, you must acquit.”
Nice little rhyme there. The jury bought it. And that’s what I mean by a trickster acquittal.
My problem with defense lawyering is emphatically not that I think there is a “complete lack of ethics.” My problem is that the ethics themselves are too client-centric and insufficiently truth-centric. So it would be more accurate to say that I get heartburn, not because defense lawyers ignore the ethics rules that are out there, but that they follow them.
As to my looking in the mirror: Guilty as charged. The returns for doing that were pretty good 50 years ago. But that darn mirror keeps telling me I’m not 20 anymore. It would seem that the mirror needs the opposite of what defense ethics need — i.e., it needs to be more client-friendly and less truth-friendly.
Doug —
Let me get to the heart of your most recent series of questions. You ask, “And that is why I keep asking, so far without any response, whether you ultimately want to jettison a commitment to an adversarial system only in this case or also in the Jan 6 riot cases or in lots of others cases….I sincerely want to know how you would like our system of justice to operate if you think it unethical for a defendant and his lawyer to contest certain criminal charges. ”
Well, there’s another blind spot, and here’s what you’re not seeing: Whether it is ethical to contest criminal charges depends on — ready now? — WHETHER THE CHARGES ARE TRUE. It is ethical, indeed it is noble, to contest false accusations. But it’s unethical, indeed it’s the essence of dishonesty, to contest truthful accusations. And this is the case whether contesting the truthful accusations is done via a direct attack (that is, outright lying) or, as is somewhat more typical in contested cases, the more slippery routes of trying to sew confusion, put on a diversionary show, kicking up dust, or changing the subject.
So here’s my suggestion for Mr. Nicey. If you didn’t beat and starve this kid, plead not guilty and put the government to its proof. If, as we both know is overwhelmingly likely, Mr. Nicey did beat and starve him (along with other revolting acts of torture), admit it, all of it, and take your medicine without whining. Also without giving everyone else a lecture (as you very oddly seem disposed to accommodate ) about how the Founders are really on your side, and the waitress was just being a busy-body, and the cops had no business poking into your family’s private life, and the military police are really to blame because they should have been more vigilant, and you were abused as a child, and you have brain lesions, and you have (check one) (a) and impoverished life, or (b) “affluenza” (the “disease brilliantly conjured up by some defense quack who had a sleazeball client he couldn’t spring with the usual, weary poverty defense).
Now having been around the track, I know what’s coming next: “Oh” — I can hear it now — “it’s not all so black and white. What about the gradations? What about the role of others, like the wife? Didn’t the kid misbehave and earn some discipline? So maybe it got out of hand every now and again, but parents aren’t perfect, ya know,” etcetera, etcetera, etcetera.
Stop already. He tortured the kid. If it had lasted much longer, he would have killed him. It doesn’t have beans to do with QAnon or January 6 or all the other stuff you want to bring in so you can discuss something other than what this guy actually did.
So this is my bottom line answer to your question. What I want from lawyers is nothing more or less than what every parent wants and expects and teaches his ten year-old: Tell the truth and don’t give me a song and dance. That this is considered scandalous in the oh, so sophisticated legal profession (with its abysmal level of public trust, see https://news.gallup.com/poll/274673/nurses-continue-rate-highest-honesty-ethics.aspx) tells us a good deal, none of it very encouraging. When you can’t expect of a lawyer what you’d expect of a fifth grader, the culture just is not in good shape. We can do a great deal better and we should.
Bill, you say here that you thnk “it’s unethical, indeed it’s the essence of dishonesty, to contest truthful accusations.” Do you know (and can a defense attorney know right away) that all 10 felony counts against the father and all 5 felony counts are indisputably truthful? Is it your view that it should be the ethical obligation of the defense attorney to quickly investigate the “truth” of all these charges and then provide its findings to the court before a plea is entered?
Again, it really seems that you a longing for an inquistorial system of justice rather than an adversarial one. That is what I am probing, the extent of your disaffinity for the adversaral nature of the American system of criminal justice. Have you studied the values and practices of other justice systems around the world that embrace inquisitorial approaches? I sense you may like how they operate, especially since there seems to be so many aspects of the American system (jury trials, defense representation) that you dislike.
Again, you are the one who did a post focused on “the obligations of criminal defense lawyers,” not on what this guy did. There is no debate about the apparent awfulness of this guy’s behavior, but it really sounds as though you are arguing a defense attorney should just serve as a kind of junior prosecutor when guilt seems beyond dispute. And that is why the January 6 riot is so relevant to this discussion, and seemingly being avoided by you, because the charges there seem even more clear — and yet I have not heard you ponder the ethics of the lawyers who have helped those defendants (“sleazeball clients”?) plead not guilty even though there is no doubt about guilt.
So, let’s try again (and if you cannot give a direct answer we can just stop here): do you believe various lawyers who have helped the Jan 6 rioters plead not guilty are “unethical” and “dishonest” for contesting DOJ’s “truthful accusations”? (I suspect many defense lawyers in the Jan 6 cases are making a lot more money than the defenders in Florida. I would guess you think it even more unethical to contest truthful accusations for a higher price, but I also would eagerly hear if that matters in your ethical calculus.)
I know that some might be inclined to say in the Jan 6 cases something like ““it’s not all so black and white. What about the gradations? What about the role of others, like Rudy and Trump and other rioters?” Well, as other might say: “Stop already. They stormed the capital and at least two people died on the scene. If it had lasted much longer, they could have killed the Vice President and many others.” So here again is my fundamental question: do you assert defense lawyers who have helped the Jan 6 rioters plead not guilty are “unethical” and “dishonest” for contesting DOJ’s “truthful accusations”?
Doug —
You correctly quote me (thank you!) as saying, “it’s unethical, indeed it’s the essence of dishonesty, to contest truthful accusations.”
Do you agree? Yes or no please.
But I’ll answer one of your questions directly as well. You ask, “Have you studied the values and practices of other justice systems around the world that embrace inquisitorial approaches? ”
Yes, in my comparative law class at Stanford. But that was 50 years ago so I’ve forgotten most of it. My preference is for adversarial systems such as ours, but I decline to use “adversarial” as a way of introducing or excusing sleaze or deceit or point-blank lying and then claiming it’s “just a different perspective.”
Mr. Nicey was torturing this kid for a good long time and deserves a very substantial prison sentence. Do you disagree?
Can you explain what you mean by “contest” here, Bill? In this case, as I understand matters, all the defense attorney has done so far is helped the client enter a plea of not guilty at the outset of the case. I think it would be unethical for a defense attorney to force a client to plead guilty to 10 charges based on police allegations and press reports without first having a chance to carefully review the evidence and advise the client in an informed manner as to his legal options and their likely consequences. But your post suggests that you see the only ethical choice for this lawyer — and, it would seem, for many other lawyers in many other cases where the initial evidence strongly indicates guilt — to force his client to plead guilty.
I certainly think it unethical to subborn perjury or engage in “deceit or point-blank lying” in order to contest any charges (whether those charges are truthful or not). But I do not think it unethical in an adversarial system for a defense attorney to help a client require the state to put forward its evidence in a public forum and convince a neutral judge or jury as to the truth of its accusations. Can you point to any American authority that ever suggests it is unethical to put the state to its burden in the American system?
Let me try, yet again, to get a straight answer to the real question this post raises (though this is getting tiresome as you reveal by yout evasion that you are a deft trickster): do you believe various lawyers who have helped the Jan 6 rioters plead not guilty are “unethical” and “dishonest” for contesting DOJ’s “truthful accusations”? I do not think they are unethical for so acting, though if they engage in “deceit or point-blank lying,” I will say they are being unethical (though I might also say they are just followng the lead of Prez Trump).
Speaking of Prez Trump, I find it interesting you seem so troubled by “sleaze or deceit or point-blank lying” by defense attorneys, but not when done by a President in office. I agree that the culture is not in good shape, but the behavior of Prez Trump (which clearly contributed to the Jan 6 riots and so much more) sure is more to blame than the work of defense attorneys. Indeed, if you think “we should do a good deal better,” why did you not turn a high-profile nomination in protest given Prez Trump’s very long (and not fairly disputed) track record of “sleaze [and] deceit [and] point-blank lying”? Why didn’t you seek to practice what you seem so eager to preach about the importance of being “truth-centric”? Does your eagerness to promote truth over lies only apply when you have no skin in the game?
I’m going to give an example of something that is not going to happen on a thread following a post I write. Here it is: “Let me try, yet again, to get a straight answer to the real question this post raises (though this is getting tiresome as you reveal by yout evasion that you are a deft trickster).”
That is a personal and sanctimonious attack on me and my honesty. If it happens again, I will edit it out without recourse.
We are not here to discuss the supposed character deficiencies of any of the authors on this blog.
I saw that you had used the term “trickster” in this comment thread, Bill, to describe the work of defense attorneys, and it struck me as a reasonable term to describe someone who raises an issue (“the obligations of criminal defense lawyers”), but then repeatedly refuses to address direct questions about that issue. I did not in any way use that term to with any intent to bemisrch the character of any of the authors on this blog or as a “personal and sanctimonious attack” — I was thinking of a “trickster” as a cunning character. But realizing the term can be associated with dishonesty, I now better understand that you may have been using the term intentionally to attack and besmirch the work of some defense attorneys.
I sincerely apologize if you found my use of the term “trickster” in this context to be offensive and off-putting. I will seek in the future to be more careful when using the terminology you use for describing some defense attorneys. If you want to cancel this thread, I would understand. But, on the topic of defense attorneys, I still remain interested in hearing yout answer to this question: do you believe various lawyers who have helped the Jan 6 rioters plead not guilty are “unethical” and “dishonest” for contesting DOJ’s “truthful accusations”?