Great Cicero’s Ghost

Three questions a criminal-defense lawyer should ask herself when considering action in aid of the defense in a criminal case:

  1. Is the action effective?;
  2. Is the action legal?; and
  3. Is the action ethical?

The first inquiry  is not, “will the action succeed.” but “do the chances that it will make things better outweigh the chances that it will make things worse?” Because this is a very complex inquiry, requiring broad and deep knowledge (the law, the facts, human nature, culture, strategy, tactics) as well as wisdom and the ability to let go of ego, it is where good criminal-defense lawyers earn their keep, and it is fraught with danger for others.

If the action fails the first inquiry, the lawyer should not engage in it, with a few exceptions: decisions that are strictly the client’s (with the lawyer’s advice, of course). Among them:

  1. Putting or not putting the client on the stand to testify;
  2. Helping the client plead guilty or not guilty;
  3. Waiving a jury trial;
  4. Requesting judge or jury punishment;
  5. Filing or not filing an application for probation; and
  6. Requesting or not requesting a lesser-included-offense instruction in the jury charge.

If the proposed action passes the first inquiry (or does not but is chosen by the client), it should be taken if it passes the second and third inquiries.

The second inquiry is whether the action is legal. In this inquiry I include the question of whether the action would violate disciplinary rules: those rules are not “ethics” but law. If the lawyer or the client might be punished for taking the action, it is not legal.

If the proposed action is not legal, the criminal-defense lawyer should not take it. There is a possible exception to this: if the law is not just, the lawyer might not follow it. We expect juries to nullify unjust laws; we shouldn’t be closed to the idea of doing so ourselves. Acting for a client in violation of an unjust law is harsh and dangerous medicine, though, and it shouldn’t be taken without consulting more-objective counsel and following Bennett’s Law of Rules.

If the action passes the second inquiry, whether because it is not illegal or because the law forbidding it is unjust and the lawyer is willing to pay the penalty for breaking it, it should be taken if it passes the third inquiry: Is it ethical?

Never trust a lawyer who takes the disciplinary rules as ethical gospel. Ethics are not dictated by government. There are things that the State Bar forbids that are ethical, and there are things that the State Bar permits that are unethical.

What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?

The question arose because of this post by Charles Thomas. There’s a great deal wrong with it, but the worst of it is this:

When I handle a sex case, there are two things I will not do — slut shame or victim blame. It’s reprehensible and has no place in the judicial process (I also note that no matter how many times I have seen it tried, it never works, but that is for another post). I get good results for my clients, fighting the cases that need fighting, working out the ones we can resolve, and I would like to think I do so fairly and respectfully.

So. Suppose that the action the lawyer is considering is (something that feminists would consider) “victim blaming”—for example, asserting that both the complainant and the defendant were equally intoxicated.

Is it effective? Absolutely. Because people who believe that a woman’s body belongs to her can want to protect her from the culpable acts of others without protecting her from her own mistakes, and just people can refuse to punish a person because he has a penis and his partner repents.

Some (things that feminists might describe as) slut shaming and victim blaming should be effective parts of the defense of a criminal case. Lack of effective consent is an element of sexual assault; the existence of effective consent is a defense. Evidence of effective consent can look—to the person who has already decided that the complainant is a victim—a lot like slut shaming or victim blaming.

Other slut shaming and victim blaming perhaps ought, in a perfect world, to have no place in the judicial process. But if we live in (what Thomas describes as) a rape culture, they do. We try criminal cases within the culture. So Thomas is deceiving himself when he says “it doesn’t work.” What works in the criminal-justice system—works to get police officers not to pursue an investigation, works to get grand juries to no-bill, works to get prosecutors to dismiss—is what works in the culture. If (things that feminists describe as) slut shaming and victim blaming didn’t work in the criminal-justice system, that would be evidence that we don’t have (what feminists describe as) rape culture.

So back to our algorithm for deciding whether to take an action in defense of a criminal case, as applied to slut shaming or victim blaming in a sex assault case.

Is it effective? Not always, but in some cases, yes.

Is it legal? Certainly.

Is it ethical? Thomas says no. He values fairness and respect too highly to engage in slut shaming or victim blaming.

So back, again, to the question: What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?

Refusing to engage in effective and legal action on behalf of the client because of your scruples may be acceptable in only one situation: where the client, before choosing you, gave informed consent to your fastidiousness. Otherwise, the criminal-defense lawyer must put her client’s interests first, above even her own ethical qualms.

If Thomas told his clients, “in your case, there are two things I will not do — slut shame or victim blame,” explained what that might mean to their case, and they hired him anyway, then he’d be free to be ethically fussy. But since he’s deceiving himself about the efficacy in criminal cases of slut shaming and victim blaming, I question whether his clients can give informed consent. And if some of his sex-offense clients are appointed, then shame on Thomas: a lawyer cannot be ethically fussy in the defense of someone who has not chosen her.

In my experience (longer, wider, and deeper than Thomas’s—I’ve known him through Twitter since he was looking for a job in 2008), when people hire a criminal-defense lawyer, they don’t want someone who will value fairness and respect to the complainant above the client’s interests. They want a fighting chance, even if that means hurting the complainant’s feelings.

Also in my experience, regret gets investigated and prosecuted. Why a criminal-defense lawyer would call that “a bogeyman legend,” as Thomas does, baffles me. That is polemic masquerading as practical knowledge. Thomas is free not to take sexual-assault cases, in which the wet work that might be required would offend his delicate radfem-ally sensibilities. He isn’t free to take such cases and leave something undone to make himself feel better about himself or to make a better society. As Cicero wrote, “It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.”

A lawyer’s ethics are personal to her, and once she’s on the case they should generally be kept that way.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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26 Responses to Great Cicero’s Ghost

  1. Anna Durbin says:

    Well, Mark, I agree with much of what you said. However, I think you can effectively raise a defense of consent without actively “slut-shaming” as I understand that term. In my experience, you can raise the issue of two people making decisions and one of them changing his/her mind later without calling someone a slut. And if your complainant is not a “slut,” then this approach would be more effective. As for “victim-blaming,” that would mean you conceded that the complainant is a “victim,” which I think would probably be a fatal error in such a defense.

    We make choices like this in many cases. For example, I have found it more effective to point out the mistakes made by a police officer and ask the jury to decide why those mistakes were made, instead of screaming that “the cop is a liar.”

    • Mark Bennett says:

      Yes, you and I know that we aren’t actually shaming sluts or blaming victims. But just as “misogyny” isn’t about the hatred of women, “slut shaming” and “victim blaming” aren’t about shaming sluts and blaming victims. Some people will see whatever we do, beyond helping clients turn themselves in and politely plead guilty, as slut shaming or victim blaming. By using those terms and promising not to engage in those behaviors, we allow those who define those terms to define how we defend.

      For example?

      For example:

      If you look at Greenfield’s post, The Crime of Regret, that prompted Thomas’s post, you’ll see that he isn’t actually talking about shaming sluts or blaming victims. It’s Thomas’s radfemally sensibilities that find slut shaming or victim blaming in this:

      [W]hen boys are prosecuted, criminally or by college tribunal, for rape or sexual assault because they were half a pair of kids who drank some alcohol and then engaged in conduct that the other of the pair decided wasn’t her best idea the next day, it can’t be ignored.

      A college girl who is less than pleased with her choice has the option of shrugging it off or accusing the boy of rape. The college boy has no options at all.

  2. Nancy Knox-Bierman says:

    Feminist, feminist, feminist….whatever. I am a defense attorney, and the fact that I have breasts and a vagina, doesn’t mean I don’t do EVERYTHING for my client, short of hiding murder weapons and other obviously ridiculous crap. Just because I run up the back stairs in stillettos, doesn’t mean I am not going to tear up a CW in a sex case. It’s kinda our job, ya know

    • Mark Bennett says:

      It’s kinda our job, ya know

      Preach it.

      • Nancy Knox-Bierman says:

        daily, dog!! Lawyering is my job, dissemination of the truth is my own little mission :)

  3. Daniel says:

    Mark,

    Just wanted to say thank you for the excellent post.
    Something I’m always preaching about is that our jobs are not about us.
    It isn’t about what you feel good about or comfortable with. Its about what is the best for our clients at all costs. (within the law and professional ethical rules)

    If you can’t put aside your own moral compass in favor of what is best for a client, you don’t belong in the profession and it is time to move on.

  4. Mark Draughn says:

    I’m glad you addressed this. When I first saw Thomas’s “there are two things I will not do…” statement, my reaction was that this was not someone I would want as a lawyer if I were accused of a sex crime. If I’m facing felony jail time, my lawyer better be damned willing to call the victim a “slut,” the cops “liars,” the witnesses “drunken fools,” and the DNA match “junk science” if that’s what it takes to save my ass. But since he has more experience than I do, I took at face value his assertion that “it never works” and decided that his moral qualms didn’t really matter in that case. Your experience and analysis puts that in a very different light.

  5. Robb Fickman says:

    I don’t know how some of these people call themselves defense lawyers. The person who makes the complaint is called the complainant.
    If it’s a false complaint, as is often the case, the complainant is sure the hell not a victim- the client is.

    Robb Fickman

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  7. Brian Tannebaum says:

    I read that Charlie quit practicing law to go read books for some company but that offer was rescinded. Is he even practicing anymore? Because his post is not that of a criminal-defense lawyer.

  8. Max Kennerly says:

    From the Pennsylvania Rules of Professional Conduct, which apply to Charlie:

    In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

    Let’s assume for discussion that we all mean the same thing when we say “slut shame or vic­tim blame.” Charlie has concluded that he believes these tactics to be both unethical (“no place in the judicial process”) and ineffective (“it never works”). The question seems to be if he has a duty to obtain informed consent from the client that he will not use some of the tactics that other criminal defense lawyers use.

    IMHO, the answer is “no,” informed consent is only required for a conflict. Surely he should discuss with the client “the general strategy,” and if the client requests that he use a strategy that involves “slut shaming or vic­tim blaming,” then he should tell the client that he will not do that. That said, by and large, trial strategy is for him to decide, and the ethical limits of his advocacy are certainly his to decide.

    You don’t need to give a client a list of all the potential tactics a similar lawyer could use and then check off which ones you will and will not use. Assume a white man is arrested by a pair of African-American officers in a town with an African-American police chief. You have no evidence of any sort of racist conspiracy in the town, and the client makes no mention of that possibility. Do you have a duty to volunteer to the client that some criminal-defense lawyers might argue there was a racist conspiracy regardless of the evidence, but you will not?

  9. Formidable ! Great work, Mark.

    Sadly, although I usually enjoy Charlie’s ruminations, he has got it wrong here, and I am with SHG and yourself on the serious issues raised. (Mind you, I have even less experience of such cases than CT has).

    There seems to be a lot of personal vituperation on both sides of the argument that Scott’s post provoked, and I am glad that you have kept to the high ground (notwithstanding allegations to the contrary elsewhere).

    • Mark Bennett says:

      allegations to the contrary elsewhere

      ???

      • On FaceBook. If I can summon the energy tomorrow – it’s nearly bed-time where I am – I’ll see what I can tell you.

      • Mark Bennett says:

        No need, Fergus. I’m not on Facebook, and I don’t give a rat’s ass what intellectual lightweights are saying where I can’t respond.

  10. Mark Bennett says:

    Max, I’m all for charity, but I think you’re being overly charitable to the unfortunate Mr. Thomas.

    If he had said, “slut-shaming and victim-blaming never work, so I won’t do them (and besides they are unethical, but that is for another post)” I would take issue with his knowledge and his reasoning, but not with his ethics. If something never works, then saying that you would never do it because it is “reprehensible,” unfair and disrespectful is irrelevant—mere pandering.

    Thomas is wrong—rape culture means that slut shaming and victim blaming sometimes work—and I suspect that his political proclivities (and the desire to be perceived as a “good ally”) shade his view of what works and what doesn’t.

    Thomas is not saying he won’t do them because they don’t work, but because they are wrong. “It never works” was just an aside, literally a parenthetical.

    Sometimes slut shaming and victim blaming work; sometimes they are wrong; sometimes they work but are wrong. It is in those cases (or potential cases) that Thomas should be either trying it or getting effective waivers from his clients. That he has convinced himself that a tactic that sometimes works never works hardly excuse him this ethical duty.

    • Max Kennerly says:

      A fair point on the parenthetical nature of his remark, but, because it was nonetheless there, I incorporated it.

      I think this is where we get into questions about what we mean by “slut-shaming” and “victim-blaming.” Charlie’s in PA, which has a rape shield law anyway (18 Pa.C.S. § 3104), so he’d have trouble engaging in slut-shaming (as I understand it, i.e., a claim that a woman is unchaste and thus incapable of being raped) even if he wanted to do so. A lawyer in PA who sneaks a slut-shaming argument into a trial has likely bought his client a re-trial.

      That leaves only victim-blaming, which I interpret as an argument that the complaining witness, by their conduct, assumed the risk of sexual assault. (This is, of course, distinct from an argument that the complaining witness consented to the sexual contact; more on that in a moment.)

      I don’t see how any criminal defendant would benefit from their lawyer arguing, “with an outfit like that, she was just begging to be raped” or the like — the predicate of the argument is their client’s guilt — and yet I’ve seen multiple instances of criminal-defense attorneys taking exactly that approach. I don’t think Charlie’s obligated to obtain consent from clients that he won’t use that approach. If he was going to, say, refuse to cross-examine the complaining witness on consent where that forms the basis of the defense, then, well, there’d be a much bigger problem at hand, but to me Charlie’s talking more about arguments that are generally considered prejudicial and irrelevant, but lawyers try to sneak them in anyway.

      Your point “rape cul­ture means that slut-sham­ing and vic­tim-blam­ing some­times work” is the harder one to tangle with, hence my example of the baseless racist conspiracy claim. Two thoughts about that.

      First, I don’t believe a trial lawyer can assume these arguments “work.” Personally, if I was on a jury, and the criminal-defense attorney focused either on victim-blaming or a baseless racist conspiracy, I’d consider that a sign the attorney either didn’t bother to fully prepare or they did prepare and realized they lacked a factual basis for a better defense. I’d thus do my best to just plain ignore them, rather than holding it against their client. The presence of people like me on a jury is something that Charlie can’t ignore simply because there might be some people on the other side of the fence. Bad arguments are not necessarily without cost, and thus there’s a legitimate “ineffectiveness” argument against presenting these inflammatory defenses, particularly in areas that tend to swing liberal, like the Philadelphia area.

      Second, let’s assume that, as a lawyer, you look at the jury and convince yourself that all of them but one won’t care if you baselessly allege a racist conspiracy, and that one will buy it completely. You, however, think this argument to be unethical (as a violation of candor to the tribunal) and repugnant to you personally. This is a stacked hypothetical in favor of your argument — no competent trial counsel can ever be completely assured as to the effect of their arguments on a particular jury — but it can help us explore this issue. Are you obligated to obtain consent from the client for not going down this route?

      I think not. You are not obligated to obtain consent from the client for every last theoretically helpful argument you chose to not take. You also don’t have to tell the client that you don’t thump the Bible or cry like a baby or talk about what your pappy always told you during closing, even though some lawyers believe that crap helps.

      • Mark Bennett says:

        Max, first, you’re limiting yourself to trial, rather than arguments to prosecutors and cops. If it didn’t work, we wouldn’t have a rape culture.

        Second, you’re assuming that you or I get to define “slut shaming” and “victim blaming.” If I got to define the terms, then I could say that they would never work.

        But that’d be too easy, and that’s not how the world works. Things that criminal-defense lawyers do in sex cases—legitimate and successful defense strategies—are reprehensible slut shaming and victim blaming to radical feminists and their good allies like Thomas.

        Why? Because women never falsely allege rape, so any suggestion that the Evil Penised Person did not know that the Poor Victim did not consent is blaming the victim, and any facts from which the EPP could have construed the PV’s consent are slut shaming.

        (See my response to Anna’s comment, too.)

  11. Better men than Mr. Thomas, facing greater stakes, have faced this dilemma and come to a different conclusion:

    An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. – Henry Peter Brougham, 1st Baron Brougham and Vaux

    If you are going to pull punches, stay out of the ring.

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  13. hbw says:

    I hear you and agree, but I dislike the disparaging tone. You don’t have to be a “radfem-ally” (whatever that means) to believe that there is an ethical problem with slut shaming and victim blaming in our culture writ large. Obviously your personal qualms and ethical misgivings should not come into play when you represent a client–but please don’t fool yourself that there are not radical feminist defense lawyers out there who are every bit as zealous and effective as their non-radical, non-feminist counterparts.

  14. Great post helping to explain why the defence attorney’s job is never to judge but to apply the law in the best interests of the client. Something, many non-lawyers will never understand. I deal mainly in DUI cases http://www.motoroffence.co.uk in the UK but you would think I am a murderer myself from the reaction of some campaigners who don’t seem to value the presumption of innocent until proven guilty!

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