Parsing Greenfield

It appears Scott Greenfield comes over here and reads sometimes, because this post seems in large measure to be directed at this post and maybe this one, too.  It could be a coincidence of timing, of course.  But probably not.

In any case, we’ll play.  There’s nothing we here at Lawyers on Strike enjoy more than a healthy disagreement.

We toss about the platitude that trials are a “search for the truth.”  It’s a lie. It’s the sort of lie that makes people feel more comfortable with the system because it comports with our branding of the legal system as a system of Justice.

An obvious retort is:  if you don’t know what the truth is, then how do you know what a “lie” is?  Seems Scott missed epistemology 101.

I suppose that seems facile, although it isn’t.  But never mind, because Scott segues rapidly to the next bugaboo:  namely, the utter meaninglessness of “justice”:

People like justice, though few have given it enough thought to realize what a ridiculously meaningless word it is.  Still, they clutch it to their breast and hang on for dear life, because they couldn’t survive a system that produced merely results, because justice is too ephemeral for any court to produce.

The seminal work of what might be called “western thought” is Plato’s Republic.  It’s a Socratic dialogue – a real Socratic exchange, not the intellectually pedestrian version they bandy about at law schools.  Anyway, the whole question the Republic is concerned with is “What is justice?”  The answer arrived at is:  giving every man his due.

Is that circular, tautological and so on?  Kind of.  Plato was certainly smart enough to realize that if he was saying anything about what justice meant, it surely wasn’t much.  But neither would he lapse into the intellectual vacuum represented by another character in the same dialogue, Thrasymachus.

Now, in the world of practical reason we go with Plato and not Thrasymachus, for what seem to anyone like very good reasons.  Justice is indeed very hard to define in the abstract, but it is also a universally held idea and is often very easy to see in this or that particular case.  It is also, admittedly, very elusive in other cases.  But to conclude that because it is elusive in some cases it doesn’t exist or can never be determined is very much like Thrasymachus’ error.  We are supposed to have banished that canard as freshmen in college, when we were like, you know, 18.

And what about this business of not being able to “survive” a system that produces “merely results”?  What is that supposed to mean?  Are we to be indifferent to the question of whether they are just or unjust results, fast results or slow results, good results or bad results?  You can leave off qualifiers like ‘good’ or ‘bad’ if you like – it’s obviously a deliberate omission, since the word ‘result’ unqualified by something to characterize it is an uncommon and pointedly neutral usage – but that doesn’t make the question go away or mean that the question never existed.

You don’t deal with problems, or questions, by wishing them away, or waving your hands and avoiding words.  I’ll lecture SHG for a change:  trials are not word games and if you do something like that in front of a jury you’ll lose.

Moving on, then.

But trials aren’t a search for the truth.  To suggest they are is to shift the burden to the defense to do its part in arriving at the truth.  As another platitude of little meaning provides, the burden of proof beyond a reasonable doubt always remains on the prosecution.  The two can’t be squared.

This is a non-sequitur.  A trial can be a search for the truth.  It does not follow from that that there is a burden on the defense of the nature Scott is indicating.  There is a burden on the defense at a criminal trial:  to defend the defendant.  That is the defense’s part in arriving at the truth.  It may or may not work, but that’s the defense’s role in the trial.  That doesn’t relieve the prosecution of its burden of proof beyond a reasonable doubt.  Scott is pretty mixed up here.

A trial, at its very best, is a test of the prosecution’s accusations.  Can they prove what they claim?  Can they prove it enough to get a jury to convict?  The role of the defense at trial is to do whatever the law permits to prevent this from happening. If the defense has evidence, they can present it. If not, they poke holes, throw punches, sometimes even blow smoke.

I’m going to agree with most everything here, with one important exception.  I think there are limits to what the defense can or ought to do to “blow smoke”.  Can the defense accuse someone else, solely to deflect the prosecution’s accusations, with no good faith basis?  I think not.  And I think criminal defense lawyers should explicitly recognize that obligation, because if they don’t then you wind up with judges who second guess the defense’s good faith when they accuse a third party, the result being that judges will overwhelmingly “preclude” defense attorneys from accusing third parties, theorizing that “you client is on trial, not someone else.”  Which is nonsense, of course, but it’s the way trials go because one of the best ways to obtain an acquittal is to convince a jury that there is another viable perpetrator, and the judge doesn’t want an acquittal.  And even if he’s not biased in favor of the prosecution or towards a conviction – as almost all judges are – a judge might recoil at the idea that a defendant would be acquitted because a defense lawyer put in evidence he knew to be bogus, just to get the defendant acquitted.  Put another way, a judge should be able to trust that a defense lawyer will not knowingly put on false or unreliable evidence, to purely “blow smoke” in pursuit of a win.

The prosecution will employ tactical measures to ensure it presents its case in the most damaging possible fashion.

This may be true in practice most of the time, but it’s wrong.  The prosecution has an obligation to be fair, not to present its case in “the most damaging possible fashion”.

The defense will employ tactical measures to undermine the prosecution’s tactical measures.

Well, sure.  Among other things, depending.  I mean, sometimes there’s more to it.

In a search for the truth, we tell all and let the chips fall where they may. Does this sound like any trial you’ve ever done?

Very odd.  Sometimes in a “search” for truth we tell all, and sometimes we don’t, because the truth is often revealed better indirectly.  But on a more concrete level, could you have a trial where the defense basically told all and let the chips fall where they may?  Sure.  I’ve had trials like that and won acquittals.  Was that wrong?

Nobody, but nobody, wants to conduct a search for the truth.

This is way overstated, Scott.

 The prosecution wants to convict.

Maybe.  But that’s not what they should want.

The defense wants to acquit.

I assume that if the defendant is innocent the defense properly “wants” very much to acquit.  If the defendant is not innocent then the defense may or may not “want” to acquit, but either way they have to try to get an acquittal.  Either way, this is not about what anyone “wants” in that sense.  We are not spoiled three year olds, are we?

…the jury wants to believe it did the right thing.

The right thing?  That would be finding the truth and doing justice, wouldn’t it?  I’m sure, most of the time, that the jury really does “want” to believe that, in the same way we grown ups properly want to conduct ourselves honorably and truthfully.

The defense has no similar responsibility to “do justice,” but rather is duty bound to defend regardless of the truth.

At trial, and within the rules, this is unarguable.  Outside of the strict trial context, though, this would be something of a distortion.  There is room to both advocate for a client and to recognize that there might be some truth to the accusations against him and some justice in accepting punishment as a result.  This is one way compromises – plea bargains – happen, and they are often in the client’s best interest.

The jury gets to watch a battle between two sides play out in front of them, and then gets to decide one lump or two.  They can search for truth in church.  In a courtroom, the only question is whether the prosecution has satisfied its burden of proof.

I don’t think the jury’s decision can fairly be likened to the choice between “one lump or two” – an expression which, in the age of lattes really dates SHG, by the way.  But here again Scott is tediously and dogmatically wrong.  If the jury’s deliberations have nothing to do with the truth, then why do they render a “verdict”?

They can “search for truth in church”?  Truth is a personal thing to be separated from civil society and confined to “churches” that we then marginalize?

This is a nuanced disagreement between me and Scott.  But it’s an important one.  The complaint I have is that Scott’s approach costs me, and my clients, by bringing the defense bar generally into disrepute among other players in the system.

I wonder if he would believe the same thing about me in reverse.  Hard to see how, but I’ll leave his arguments to him.


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Filed under Striking lawyers, wrongful convictions

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