Lawyers! Hiding behind Constitution?

justamom · #1 09-22-2002, 08:15 AM

The lawyers in the Van Dam murder trial KNEW their client was guilty. They were in the process of striking a deal with the DA (revealing where the body was to avoid the death penalty). The body of Danielle was found and the trial ensued. O'Reilly charges that the defense lied and therefore should be disbarred. Nimmo argues it was the responsibility of the two lawyers to present the best defense for their client even though in this instance, they misled the judge and jury

I happen to agree with O'Reilly on this. I believe it's another example of our justice system being twisted and lawyers manipulating the "letter" of the law. Would love to hear law students' and armchair lawyers' take on this.

http://www.foxnews.com/story/0,2933,63424,00.html

OK, counselor, tell me where I'm wrong.

WILLIAM NIMMO, CRIMINAL DEFENSE ATTORNEY: Well, you're wrong in the sense that I don't think you understand what the duty of a defense lawyer is. That rule that you read, 5200, that applies to situations -- you're not supposed to tell the judge you need a continuance for a particular reason and then in reality you're going golfing, things like that.

That doesn't have to do with your duties and obligations to defend an individual at trial. If you read the case of U.S. versus Wade, which I think is a -- like a 1967 case, an opinion of Justice White in there explains part of the evolving duties and obligations of a defense lawyer.

Our job, regardless of what we know, regardless of what our client knows, is to put on a vigorous defense, which means cross-examining witnesses even we know are truthful, putting up scenarios that we know might even not be correct.

I mean, this is not just -- it's not just what we're supposed to do. It's what by law and by the Constitution of the United States we have to do.

O'REILLY: Now I'm going to tell the audience that I disagree with your interpretation of the rule. I don't see anything like that near the rule. So you're telling me that it's your duty, counselor, to go into court and lie in defense of your client. You're telling me that?

NIMMO: Well, I -- no, I don't think you should go in there and lie on behalf of your client.

O'REILLY: Oh, you don't? Well, that's exactly what these two counselors...

NIMMO: No, I don't think so.

O'REILLY: ... did. They said to the jury...

NIMMO: No, they didn't.

O'REILLY: ... flat out -- yes, they did. They said flat out that the killer of little Danielle could have been let in by the Van Dams, part of a group of strangers hanging around with them for sexual purposes. They knew that scenario was not true, counselor, yet they proposed it to the jury.

That is a lie.

NIMMO: Bill, I'm telling you the Constitution of the United States says...

O'REILLY: Don't tell me about the Constitution.

NIMMO: ... that's your duty.

O'REILLY: Tell me about what I just told you.

NIMMO: No, I mean...

O'REILLY: We're talking man to man here. I just gave that scenario to you. You know it's true. You know it was a lie. You just said you can't lie. He did lie, and now you're throwing me the Constitution. Deal with this directly.

NIMMO: Bill, Bill O'Reilly, just because you have a voice here, that doesn't mean that you've got to go against the Constitution. We're mandated by the Constitution to give an effective, aggressive defense. So please, read that case.

O'REILLY: Counselor, deal, deal...

NIMMO: Bill, honestly, read that case.

O'REILLY: ... with my question.

NIMMO: You don't understand it.

O'REILLY: These -- Don't understand, baloney.

NIMMO: I'm trying to tell you...

O'REILLY: These lawyers lied. They lied in the courtroom.

NIMMO: Oh, that's...

O'REILLY: You told me they're not allowed to lie...

NIMMO: No.

O'REILLY: ... and they lied. I just told you how they did it, and are you denying they did that?

NIMMO: I'm not denying that they maybe put up a defense that they didn't believe in.

O'REILLY: They lied, counselor.

NIMMO: That's their duty and their obligation.

O'REILLY: What is it about the word "lied" you can't understand?

NIMMO: What is it about the word "Constitution" that you don't understand? This is a -- it's a Constitution-mandated obligation. You need to read that case so you can understand it.

O'REILLY: Crap. Hiding behind the Constitution...

NIMMO: If we...

O'REILLY: ... is disgraceful.

NIMMO: Hiding behind the Constitution?

O'REILLY: This is a lie. They brought a lie into this courtroom, counselor. You're justifying it. A little girl was slaughtered.

NIMMO: No, I...

O'REILLY: You think it's OK to make up a lie to try to mislead the jury. They knew this guy did it. They knew where he buried her. They tried to get a plea bargain, and you say it's fine. That's an outrage. An outrage.

NIMMO: Mr. O'Reilly, if you really believe that, you need to get a grip on it, because it's the Constitution. We can't go against the Constitution in the courts. If you want to change the law and change the Constitution, do it, but that's what we have to do.

O'REILLY: You don't know what the Constitution is. It doesn't say a defense attorney is entitled to lie...

NIMMO: I know exactly what it says.

O'REILLY: ... to try to get his client off. It doesn't say that. If you can show me where it says it, I'll give any charity you want $10,000. The Constitution does not say...

NIMMO: (UNINTELLIGIBLE)...

O'REILLY: ... a defense attorney is entitled to lie to get his client off when he knows the client is guilty.

NIMMO: You need to read Justice White's opinion in the U.S. versus Wade, you really do, 1967.

O'REILLY: All right. Fine. I think everybody out there -- look, I'll tell you one thing. I appreciate you coming on, because I know you know how angry I am, and I'm not taking it out on you.

NIMMO: Yes, you are angry. (UNINTELLIGIBLE)...

O'REILLY: I think you are so wrong...

NIMMO: And I can see why you'd be angry.

O'REILLY: ... I think it's -- you're so wrong it's painful. I think that this is the most egregious example of misconduct on the part of attorneys I've ever seen in my life. We have proved this. This is beyond dispute. Yet you are putting up the Constitution to say these men had a right to try to mislead this jury and that judge to get a child killer back on the street where he might do it again, and that's not what the Constitution says, counselor.

I'll let the audience decide. I appreciate you coming on and taking the heat. It's not against you. I do think you're very wrong, but I respect your opinion.

NIMMO: I don't believe it's against me, and I thank you for giving me the opportunity to set you straight.

O'REILLY: All right, counselor, thank you.

kddani · #2 09-22-2002, 10:09 AM

I'm not sure if i want to tackle this one.
O'Reilly can really be an ass at times. Sometimes he brings up valid points, but other times he's just an ass. I really can't stand watching him.

I'm not that familiar with the case, and i'm not that familiar with exactly what part of the Consitution he's applying here (5th amendment? like I said, haven't been following closely).

Lawyers, like Doctors, have specific ethics that they are supposed to follow. When you're a defense attorney (which i will never be! it takes a very particular kind of person to do that), a lot of times your professional responsibilities come into conflict with your moral responsibilities. That's why being a defense attorney is such a hard job. You can be disbarred for not following your professional duties. The public harasses you for not following your moral responsibilities.

I'm not established enough in the law to argue much morem though. Those are just my initial thoughts.

valkyrie · #3 09-22-2002, 12:05 PM

Quote:

Originally posted by kddani
When you're a defense attorney (which i will never be! it takes a very particular kind of person to do that)

I'm just curious -- what type of person does it take to be a defense attorney?

kddani · #4 09-22-2002, 12:11 PM

Well, when you're a defense attorney, many times you will be defending clients who are guily of some atrocious acts. It's one thing if they're innocent- then it could be extremelly rewarding. If only I could defend innocent people- what a world that would be! :O)

I just know that I'm not the type of person who could defend a person who is guilty of murder, rape, molestation, etc. I'm way too emotional and wouldn't be able to separate my emotions from my professional responsibilities.

This is why sometimes attorneys don't WANT to know if their client is guilty. They've been hired (or appointed by the court) to do a job, and they have to do that to the best of their abilities, regardless of how they feel about the crime and whether or not their client is guilty.

It's a tough job.

For me personally I don't wish to go into such an area. But props to those who do.

valkyrie · #5 09-22-2002, 12:22 PM

Okay...I was just asking because I am a defense attorney.

The really good part about my job now is that I'm new at it and so I'm not to the point where I represent people who have done anything heinous. There have been maybe two cases that have made me go home and cry, but for the most part I really enjoy it. Most of my clients are charged with drug offenses, and since I believe that drugs should be legalized, even if they did it I have no problem fighting for them. Anyway, most of my clients admit that they did it, and then I just try to make sure that they get a fair deal from the state.

Anyway, back to the original question -- I don't think that it's wrong for an attorney to present a possible scenario even if she thinks it's not true. First of all, unless the attorney was there, she has no way of KNOWING for sure that her client did it. I don't think that is lying -- to me, it is making sure that the state is proving the case beyond a reasonable doubt. That, to me, is the cornerstone of our criminal justice system. Even if a defendant is guilty, it is the duty of the state (per the Constitution) to PROVE it BEYOND A REASONABLE DOUBT. If someone is guilty and the state can't prove it beyond a reasonable doubt, the guy, quite simply, should not be convicted. It is a safeguard, I think -- convicting someone of a crime is a very serious matter, and the whole point of the reasonable doubt standard is to ensure that the state is doing its job and if some guilty people fall through the cracks and "get off" well, that's better than innocent people going to jail for things they didn't do. The framers made this the standard, and if O'Reilly doesn't like it, well, that's his problem.

KSig RC · #6 09-22-2002, 12:35 PM

JAM -

Are you implying that, if the defendant admits to the crime to the lawyer, the defense should just turn him in?

James · #7 09-22-2002, 12:46 PM

I am sure there a lot of cynical defense attourneys.

But a lot of cynical people are actually highly idealistic, they have just seen ideals twisted by people with social agendas.

Kind of like some of the never ending founder debates on here . . . "what would your founding ideals say about you having sex with lots of women . ." or something.

I believe a lot of defense attourneys really do idealize the Consititution.

Defense attourneys will also say that they aren't protecting their clients per se, they are defending due proces of law.

By defending due process of law they are defending all of us.

What they are saying is that the State's case, or the Government's case already has a lot of weight to it.

Most people believe that you would not have been arrested or charged if you hadn't done anything wrong.

That creates an immediate bias in the eyes of jurors and the media.

What the defense will do a lot of is reviewing the steps that the police and prosecution took and look for flaws where human corruption and human error may be leading to a false guilty verdict or a situation where the prosecution gets the correct verdict but had to violate the process and civil rights all to hell to do it.

Also, defense attourney's are very aware that innocent people go to prison. Especially people that are unable to afford good representation.

Defense attourneys are also aware that prosecutors live to get convictions and that stronger sentences "look" better on their record.

So sometimes Defense attounreys are compelled to get their client completely off because they are being charged for a level of crime out of proportion to what they really did. With an incredibly stiff sentence.

Think three time loser laws where a shoplifting crime can get you 20 years to life.

Taking this into consideration I believe that defense attourneys are among the noblest of proffessions. the only thing that sucks is that alot of them are probably not very good.

Optimist Prime · #8 09-22-2002, 02:52 PM

Well, the leter of the law is there for a reason. Its better to let 100 guilty people go free than one innocent person jailed or executed.

justamom · #9 09-23-2002, 05:37 AM

KSig RC wrote--- Are you implying that, if the defendant admits to the crime to the lawyer, the defense should just turn him in?

I tried to answer this yesterday afternoon, but GC wouldn't let me post.

No, it's more in the area of believing that the defense should not fabricate a defense they know to be false. One point of the interview that struck me was the fact that the defense KNEW he was guilty. A more honest approach would have been presenting a defense of HIM and HIS actions-he went crazy, he was on drugs, he was abused as a child. Take James's approach-as much as I hate the way the system works AT TIMES, to question procedure, too, would be based on facts. Instead, they created a scenario that implied some other person was responsible, that the lifestyle of the parents led to her kidnapping and death. They KNEW this was a lie. I'm not saying the lawyers shouldn't put on the best defense possible, but it should be based on the facts as they know or believe them to be true. The transcript is incomplete. Prior to Nimmo's interview, O'Reilly spoke of the FIRST attorney O J Simpson approached. He refused to take the case because he felt he could not sully his integrity by defending someone he believed was guilty. For attorneys to use the Constitution as an excuse is reaching. I don't believe it was ever intended to be used or manipulated in this manner.

KSig RC · #10 09-23-2002, 11:49 AM

Quote:

Originally posted by justamom
No, it's more in the area of believing that the defense should not fabricate a defense they know to be false. One point of the interview that struck me was the fact that the defense KNEW he was guilty. A more honest approach would have been presenting a defense of HIM and HIS actions-he went crazy, he was on drugs, he was abused as a child. Take James's approach-as much as I hate the way the system works AT TIMES, to question procedure, too, would be based on facts. Instead, they created a scenario that implied some other person was responsible, that the lifestyle of the parents led to her kidnapping and death. They KNEW this was a lie. I'm not saying the lawyers shouldn't put on the best defense possible, but it should be based on the facts as they know or believe them to be true. The transcript is incomplete. Prior to Nimmo's interview, O'Reilly spoke of the FIRST attorney O J Simpson approached. He refused to take the case because he felt he could not sully his integrity by defending someone he believed was guilty. For attorneys to use the Constitution as an excuse is reaching. I don't believe it was ever intended to be used or manipulated in this manner.

I think I see what you're saying - I'm not sure really where I stand, I'm still trying to formulate a stance here . . . it's a weird situation, stuck between a (moral) obligation to do the 'right thing' and an (ethical) obligation to perform your job to the best of your ability.

I will agree that the Constitution should be used as an "excuse" - however, often there is a fine line between using the Constitution as justification for something (as it as intended) and making excuses, to my mind.