Is this really "your obligation as a trial lawyer"?!?

From the Boston Herald (click on link for full article):

Critics of politics-as-usual at the State House have long railed against lawmakers who pull double duty as defense lawyers.

The issue reared its head during debates over Melanie's Law, which toughened drunken-driving penalties and has been an omnipresent factor in ongoing discussions about toughening the state's sex-offender laws.

Rep. James Fagan, a Taunton criminal defense attorney, recently argued on the House floor against Jessica's Law, a measure that would set mandatory minimum sentences for child rapists.

"Let me tell you why it's so wrong," said Fagan (D-Taunton). "It's so wrong because in these situations . . . that 6-year-old is going to sit in front of me, or somebody far worse than me and I'm going to rip them apart. I'm going to make sure that the rest of their life is ruined. That when they're 8 years old they throw up; when they're 12 years old, they won't sleep. When they're 19 years old they'll have nightmares and they'll never have a relationship with anybody. And that's not because I'm a nice guy. That's because when you're in court, and you're defending somebody's liberty, and you're facing a mandatory sentence of those draconian proportions, you have to do every single thing you can do on behalf of your client. That is your obligation as a trial lawyer."

why Americans are so fed up with the criminal justice system?

So if you are accused of such a crime you would not want a guy like that defending you? It seems to me that when there is a lot at stake that you would want a defense attorney who is going to be a pit bull in court and do anything that he can do to get you off.

I remember some discussion here on these boards last year saying that this is the kind of thing that would be happening with these mandatory minimums from Megan's Law, et al., and the feds. A lot of cases are going to be going to trial because the defendant has nothing to lose and because the state cannot offer a half-way decent plea bargain like in the past.

And guess what, none of that would happen if the jacka$$ defendant wouldn't have perped on the little kid in the first place. So there you go - don't have a mandatory harsh sentence because the poor little girl has already been through enough and we should just LET these guys put more little girls through it so this one doesn't get revictimized. Wow.

Should a defense attorney re-traumatize a child victim/witness to get his client off? Is the goal of cross examination to destroy a witness? Or is cross examination "the greatest legal engine ever invented for the discernment of the truth"?

I am not saying that such a cross should be done solely to hurt the alleged victim. While there are plenty of people who do molest children, there also many others who have been wrongfully accused. And a person is presumed innocent until they have been found guilty, right? So is it then okay for the defense to conduct a really tough and rigorous cross only if the guy really is 'innocent'? But if the guy is 'guilty' he should not get the benefit of the same type of defense?

I am comfortable with tougher punishment ranges for criminals actually convicted because there are people willing to zealously defend them. On a personal level, it can't be easy to offer such a vigorous defense of someone you know to be an *obscenity deleted* but if defense lawyers were all "wink-wink nudge-nudge" on the guilty ones then the personal opinion of the defense attorney would undermine the blind justice concept.

Because of this strong advocacy, we as a society can be more certain of guilt in people who are actually convicted. The more certain we are of guilt, the more severe the punishment we accept in our name.

Yes, but there's a huge difference between conducting a vigorous cross-examination to get to the truth and "making sure their life is ruined" to the point they're throwing up over it years later. I'm completely fine with the former. That's what they're supposed to be doing for their client. But if the defense attorney's goal is the latter, I have no respect for them.

He should be disbarred, based on his rhetoric. Nonetheless, he's going to hell.

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Originally posted by R_Smith:
I am not saying that such a cross should be done solely to hurt the alleged victim.

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No, but he is.

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" ... you have to do every single thing you can do on behalf of your client."

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You are drawing lines; he is not. There are no exceptions in his statement. Read it again. "Every." "Single." "Thing." This is a simple ends-justify-the-means approach to defense work.

If that's what our increasingly valueless, relativistic society wants to condone, then it's gonna get it what it wants, good and hard.

It's really easy to ennoble such a vigorous cross when you assume the allegations are false. But that's not the scenario the legislator was talking about. (It's even harder to do when you consider the more likely scenario where the perp has molested his own child, but there's no indication in the statement that that's what the speaker envisioned.)

Courts can put reasonable limits on cross-examination. Back in the 80s there was a push to increase professionalism in the bar and curtail such Rambo-litigation tactics. While the Rules of Professional Conduct require zealous representation, that same Preamble states that a lawyer should use the law or procedures for legitimate purposes and not to harass or intimidate others.

So there may be some ethical problems with this type of pit-bull representation. And that's not even talking about morality.

I agree with Andrea. The only real purpose of a life-sucking cross examination like that is to scare the victims away from testifying. If that tactic works, whether in the specific case, or in the abstract by creating the fear among all victims, then there is no getting at the truth through an adversarial process. All you do is rape the system.

Rep. James Fagan's comments were made in opposition to mandatory minimums. Does that mean that he would be a less zealous advocate if his client was eligible for probation?

This conversation is based on the ignorant presumption that a 'vigorous cross examination' is equivelent to good or great representation.

That's stupid.

The best representation is the effective arguing of a point of view that establishes before the jury a reasonable doubt thereof.

No rational juror should base their decision on who shouted the loudest. Given that capacious malediction, it is reasonable to conclude that said defense attorney is an Ass, not a zealous advocate.

Yes, the hint of pride he has when describing his abilities is very telling.

I also get the feeling that Representative NumbNuts would take pride in attacking children through cross examination in a mean spirited attempt to prove himself prophetic on the Congressional floor. (Then justify his strategy by saying 'they're making me do this because of the law'.)

I have been on both side of the docket and have prosecuted and defended cases like this. There was never, not ever, not once presented before me a case that required me as a defense attorney to "ruin" a child's life on cross-examination. Foolish attorneys might try it, but I never saw that such a tactic would ever help my client. No jury I ever faced would have tolerated such a brutal tactic with a child witness and my client would have sufferred, as well as the child. These lawyers preaching such tactics may be fond of thinking they are tough trial lawyers, but smart trial lawyers do better. Beating up on a child in court may make some feel like all-star, but more often than not it's a jerk without a clue.

[This message was edited by Bob Cole on 06-25-08 at .]