For Barb- Due process and other legal musings

[James Griffin]

Originally Posted by Barb

I'm sure there are bad experiences to be had in any profession. The tragedy of bad experiences in the legal profession is that sometimes it is a life or death situation.

That being said, I have a few questions...

In layman's terms, what is due process?!

What are the rules of conduct ensuring that due process has been achieved?!

Can an attorney refuse to represent someone whom they know or believe to be guilty...let's say a rapist is caught in the act or a man is arrested with the bloody knife in his hand and the dead man at his feet?!

Sorry was gone most of afternoon. Was actually doing some babysitting for a good friend.

Renda gave a good answer due process is making sure a person has had all possible legal and procedural defenses made available to them.

On the other hand as Baron pointed out a detailed discussion would actually entail volumes of discussion.

The two main divisions are substantive due process and procedural due process.

It is the latter which gives most laymen the most pause.

Things like Miranda warnings, timely filing of motions etc.

The first time I realized just how “technical” law could be was my first mock court trial in law school. The case involved a 40 year old who had consensual sex with a 14 year old. The problem was heavily schewed in favor of the state. However, when she finished I moved for and got a directed verdict resulting in acquittal. One element the state had to prove beyond reasonable doubt was she was not his spouse. She never asked before resting the case.

Yes the law is that technical, but I don’t think justice can be done any other way. Start leaving out procedures and elements to be proven and soon you may as well have the state just decide who they want to throw in jail and for how long.

Interestingly enough the “duties” of the defense attorney and prosecutor are different. The defense attorney is to make their knowledge of the law and procedure available to the defendant and to aid the defense in any manner necessary without violating any of the rules of conduct.

Personally, I cannot recall ever asking a single client if they were guilty. I explained to them what the state’s evidence was, asked them what happened, transmitted plea offers if any, explained the options and their consequences, and then asked the client what they wanted to do.


On the other hand the prosecutor alone has additionally sworn to see that justice is done. They are duty bound to reveal exculpatory evidence etc., sometimes they forget that in a win at all cost mentality.

[James Griffin]

Can an attorney refuse to represent someone whom they know or believe to be guilty...let's say a rapist is caught in the act or a man is arrested with the bloody knife in his hand and the dead man at his feet?!

The rules are somewhat different in a criminal case, than being forced to accept a civil one.

Harris County (Houston) is the death penalty capital of the US, and indeed sentences more people to death than all but a handful of countries in the world, and yet is the only metro area I know of in the entire US that does not have a public defenders office.

All cases are individually appointed by judges to individual defense attorneys.

Those attorneys are placed on a rotation list, according to experience level and are assigned cases randomly. Refusal is not an option (barring procedural reasons like attorney was a witness or conflict of interest).

Additionally there would come an occasional case where it maybe it was a difficult client or gruesome fact pattern, or complicated issues and the judge would appoint to someone he saw in his courtroom that was good enough to handle those type cases. (I ended up “volunteering” for many of them)

It would be professional suicide to refuse and in some rare cases you could end up in trouble with the bar. The general rule is (and any attorney of my experience and ability could find exceptions) you cannot refuse a case merely because you do not like the defendant or the fact pattern.

On the other hand, an attorney in private practice that does not take court appointments is generally given more leeway.

[Digging4Truth]

Originally Posted by James Griffin

Yes the law is that technical, but I don’t think justice can be done any other way. Start leaving out procedures and elements to be proven and soon you may as well have the state just decide who they want to throw in jail and for how long.

Absolutely.

This fact used to be the bane of my existence. I was disturbed by seeing people get off on "technicalities". I had a Rambo sort of out look on justice.

In the last few years much has changed in my feelings toward these technicalities. I have seen the harm that an "ends justify the means" attitude toward these increasingly technical requirements can do. We can lose everything our forefathers died for.

There are no "yeah, but"'s in law.

Every due process should be afforded every person. I have since learned that the only way to ensure my rights are maintained is to work hard to maintain the rights of those my gut tells me least deserve it.

Thanks to all of those who go to the endth degree to ensure that even the Osama Bin Laden's of the world get their due process if they find themselves face to face with the American court system.

[Baron1710]

Originally Posted by James Griffin

The rules are somewhat different in a criminal case, than being forced to accept a civil one.

Harris County (Houston) is the death penalty capital of the US, and indeed sentences more people to death than all but a handful of countries in the world, and yet is the only metro area I know of in the entire US that does not have a public defenders office.

All cases are individually appointed by judges to individual defense attorneys.

Those attorneys are placed on a rotation list, according to experience level and are assigned cases randomly. Refusal is not an option (barring procedural reasons like attorney was a witness or conflict of interest).

Additionally there would come an occasional case where it maybe it was a difficult client or gruesome fact pattern, or complicated issues and the judge would appoint to someone he saw in his courtroom that was good enough to handle those type cases. (I ended up “volunteering” for many of them)

It would be professional suicide to refuse and in some rare cases you could end up in trouble with the bar. The general rule is (and any attorney of my experience and ability could find exceptions) you cannot refuse a case merely because you do not like the defendant or the fact pattern.

On the other hand, an attorney in private practice that does not take court appointments is generally given more leeway.

That is certainly a special situation. Most areas you have to sign up for that kind of action. In DC it is difficult to even get on the list.

Under the Model Rules of Professional Conduct most jurisdictions have adopted rule 1.16(b)(4) under the heading termination of Representation, though DC does not and I am guessing from what you said neither does Texas. "The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;"

Most Judges won't let you off that easy however if you are already involved in the case.

[Sister Alvear]

Sometimes I wish I was a lawyer! However I do have a very good one here in Brazil and am very thankful for her friendship.