Download Rules of the Justice Game (Dershowitz)

CHAPTER 8
Law and Legal Professionals
Lecture slides prepared by Lisa J. Taylor
Law
• Administers justice
• Enforces rights
• Is a tool of behavior change
• Is educative
• Natural law: Laws inherent in the natural world that can be
discovered by reason.
• Positive law: Laws written and enforced by society.
• Good Samaritan Law: prohibits passing an accident scene
or witnessing a crime without rendering assistance
Protection from Harm
• Social contract theory holds that people
sacrifice certain freedoms in exchange for the
protection of society.
• How much freedom should be sacrificed?
• Only the minimum necessary to protect the liberty
of others.
• Convicted of killing his wife.
• Note left on bathroom mirror rebuking
his wife for not having sex with him
the night before.
• Evidence of extramarital affair.
Michael
Morton
Case
(1986)
• Bloody bandana found near the
home—but was suppressed from the
defense.
• Incarcerated for nearly 25 years
before being exonerated due to DNA
and other evidence not shared at
trial.
Justifications for Law
• The harm principle: to prevent harm to persons other
than the actor (assault, robbery, arson)
• The offense principle: to prevent serious offense to
persons other than the actor (public indecency or
lewdness)
• Legal paternalism: to prevent harm to the actor (seat
belts)
• Legal moralism: to prohibit conduct that is inherently
immoral (gambling)
• Benefit to others: to provide some benefit to persons
other than the actor (toxic waste dumping)
Protection From Self (Paternalism)
Laws that prevent people from harming themselves.
Ethics of care: OK—behavior is “good” for the subject
even though he or she may not agree.
Utilitarianism: OK—such laws reflect a “public good.”
Ethical formalism: NOT OK—violates the concept of
treating all with regard.
Paternalism with Restrictions?
• Should be as limited as possible.
• Should only apply if a person is
incapable of making a competent
decision.
• Should seek only to prevent a serious
and irreversible error.
• Two states have no helmet
law.
• Nineteen states have a
mandatory helmet law.
Helmet
Laws in
the United
States
• Twenty-seven states have
an age requirement for
helmets.
• Two states have an age and
insurance requirement.
Protection of Morals (Moralism)
• The state often makes laws based on moral standards,
even though there is no consensus within society about
these moral standards.
• Some behaviors are defined as “wrong” and are prohibited,
although those involved in them are consenting.
• Legal moralism may change through time.
• The U.S. Supreme Court upheld Georgia’s right to declare
sodomy illegal in 1986. In 2003, the same court declared
Texas’s law against same-sex sodomy unconstitutional.
Same-Sex
Marriage
Laws in
the United
States
•
Massachusetts was first to allow same-sex
marriages in 2004.
•
Prior to 2012, same-sex marriage was also
legalized in NY, CT, IA, NH, VT, and
Washington, D.C.
•
In early 2012, WA State and MD both
approved same-sex marriage laws, but
neither took effect immediately and both
were expected to be challenged in
referendums.
•
In early May, 2012, NC voted for a
constitutional amendment that would ban
same-sex marriages, partnerships and civil
unions.
•
This issue continues to evolve, be a topic of
discussion, and hotly debated in the
political arena.
Paradigms of Law
Consensus paradigm
Society is a community of like-minded individuals who agree on goals
important for ultimate survival.
Conflict paradigm
Society contains competing and conflicting interests. Governance is
based on power; if some win, others lose, and those who hold power
promote self-interest.
Pluralist paradigm
Society contains competing interests, but more than two basic interest
groups exist; the power balance may shift as part of the dynamics of
societal change.
• Some people believe that advocate
for more severe sanctions and
harsher laws against illegal aliens.
• There are other groups who
Immigration
Laws in the
United
States
advocate amnesty, worker permits,
the Dream Act (that would award
citizenship to college graduates or
those who enter the military) or
other solutions.
• The law is dynamic and even
existing law is fluid in that
enforcement practices shift from
time to time.
Perceptions of Judicial Processing
The Ideal:
The American Justice system is fair and unbiased.
Two equal advocates, with a neutral judge, arrive at the
truth.
The Reality:
Most defendants are represented by overworked and/or
inexperienced advocates.
Perceptions of Judicial Processing
A “Confidence Game”:
Advocacy a pretence
Individualized justice a pretence
Bureaucratic Justice:
Bureaucratic efficiency supplants goal of justice
Presumption of guilt (plea bargaining)
The Wedding Cake Model:
The few "serious" cases are the top layer
Bottom of the cake represents the majority of cases
Bottom receive mere token of justice process
Rules of the Justice Game (Dershowitz)
Rule I: Almost all criminal defendants are, in fact, guilty.
Rule II: All criminal defense lawyers, prosecutors, and judges
understand and believe Rule I.
Rule III: It is easier to convict guilty defendants by violating
the Constitution than by complying with it, and in some
cases it is impossible to convict guilty defendants without
violating the Constitution.
Rule IV: Almost all police lie about whether they violated the
Constitution in order to convict guilty defendants.
Rules of the Justice Game (Dershowitz)
Rule V: All prosecutors, judges, and defense attorneys are
aware of Rule IV.
Rule VI: Many prosecutors implicitly encourage police to lie
about whether they violated the Constitution in order to
convict guilty defendants.
Rule VII: All judges are aware of Rule VI.
Rule VIII: Most trial judges pretend to believe police
officers who they know are lying.
Rule IX: All appellate judges are aware of Rule VIII, yet
many pretend to believe the trial judges who pretend to
believe the lying police officers.
Rules of the Justice Game (Dershowitz)
Rule X: Most judges disbelieve defendants about whether
their constitutional rights have been violated, even if they
are telling the truth.
Rule XI: Most judges and prosecutors would not knowingly
convict a defendant whom they believe to be innocent of the
crime charged (or a closely related crime).
Rule XII: Rule XI does not apply to members of organized
crime, drug dealers, career criminals, or potential informers.
Rule XIII: Nobody really wants justice.
Tenaha,
Texas
(2009)
•
Investigative report revealed that black and
Hispanic motorists passing through were
stopped for minor violations and threatened
with jail or the loss of their children if they
didn’t hand over large amounts of money.
•
The DA said denied any wrongdoing,
arguing that Texas law allows the
confiscation of money and personal
property used in a crime.
•
Prosecutor’s office wrote a $10K check
from the asset forfeiture account to a police
officer who stopped many of the people, for
“investigative costs.”
•
Class action suit was filed.
•
Investigation showed that over 1K people
were stopped on questionable grounds.
The Attorney-Client Relationship
• The Legal Agent model defines the lawyer as
neither moral nor immoral, but merely a tool.
• Under the Special Relationship model, the
lawyer places loyalty to the client above all other
considerations.
• Under the Moral Agent model, the lawyer must
adhere to his or her own moral code.
Legal Agent vs. Moral Agent
• “Hired gun”
• Promotes client’s
interests and performs
client’s will
• Argument that this is the
role of the attorney and
ethical standards and
rules keep attorneys from
doing illegal or unethical
acts
• Maintains own values of
truthfulness, moral
courage, benevolence,
trustworthiness, and
moral autonomy
• Will refuse to perform
acts that violate personal
code of ethics
• Argument that ethical
rules are easily
circumvented and each
attorney must practice
individual morality
Legal Agent vs. Moral Agent
Cohen’s Moral Principles for Lawyers:
•
Don’t treat people merely as the means to winning cases
•
Treat similar people similarly
•
Don’t deceive the court
•
Make reasonable personal sacrifices for morally good
causes
•
Don’t financially support or profit from wrongful acts
•
Avoid harming others while representing your client
•
Be loyal to your client; don’t betray confidences
•
Make moral decisions; act consistently upon them
Legal Agent vs. Moral Agent
Criticisms of Cohen’s Principles:
•
They are naïve and wrong on several counts
•
Existing rules already prevent unscrupulous acts
•
Decisions regarding justice and morality are so
subjective that it is impossible for them to be judged
•
A lawyer acting as a moral agent would forfeit client trust
by substituting his or her own moral code for the client’s
Ethical Standards for Lawyers
Model Code of Professional Responsibility
Model Rules of Professional Responsibility
Restatement of Law Governing Lawyers
Criminal Justice Standards
•
Each state bar association can sanction offending
lawyers or recommend suspension of their law license.
•
Many complain that bar associations ineffectively police
their own ranks.
•
While law schools require ethics courses, many believe
that, in practice, ethical considerations are secondary.
Thinking
Point
In the first quarter of 2010, a public defender
from San Francisco accused the district
attorney of outright obstruction of justice and
unethical conduct by refusing to release the
district’s law enforcement officers criminal
and misconduct histories for use in trial. The
district attorney’s office is legally obligated
to hand over such information to the
designated defense. By neglecting to hand
over such information, hundreds of cases
are in jeopardy of mistrials.
Was the DA’s act unethical?
Does it violate the legal agent?
Moral agent? Why?
Responsibility to the Client
Attorneys cannot abandon their clients
unless:
 the legal action is for harassment or malicious
purposes,
 continued employment will result in violation of a
disciplinary rule,
 discharged by a client, or
 a mental or physical condition renders effective
counsel impossible.
Responsibility to the Client
Attorney–client privilege prevents compelling attorneys
to disclose confidential information about their clients
Exceptions that permit revealing confidences include:
•When clients consent
•When required by law or a court
•To defend against an accusation of wrongful conduct
•To prevent clients from committing crime or fraud
•To prevent, mitigate, or rectify financial injury to another
ABA’s Model Code of
Judicial Conduct
1. “A judge shall uphold and promote the independence, integrity,
and impartiality of the judiciary, and shall avoid impropriety and
the appearance of impropriety.”
2. “A judge shall perform the duties of judicial office impartially,
competently, and diligently.”
3. “A judge shall conduct the judge’s personal and extrajudicial
activities to minimize the risk of conflict with the obligations of
judicial office.”
4. “A judge or candidate for judicial office shall not engage in
political or campaign activity that is inconsistent with the
independence, integrity, or impartiality of the judiciary.”