The Damage Incompetent Pundits Do: Criminal Defense Misconceptions

See? I WARNED you not to listen to Mercedes Colwin!

A couple of months back, I flagged some outrageously mistaken commentary on Sean Hannity’s radio talk show given out by Mercedes Colwin, who is a lawyer but prone to howlers whenever she shows up on Hannity or Fox News, which I suspect favors her for qualities that have nothing to do with her law practice. On the occasion that roused my ire, Colwin suggested that she could not defend a criminal client who told her he was guilty, because she was “an officer of the court.”

This is pundit malpractice grafted to legal incompetence: a defense attorney MUST maintain a client’s legal innocence whether the attorney knows the client is guilty or not, and being an officer of the court has nothing to do with it.

Colwin, who was discussing the Casey Anthony trial, represented herself as an expert and then reinforced the most persistent and most damaging popular misconception about the legal system, which is that there is something unethical about defending guilty criminal clients. The system has to be held to a high standard of due process, and even an “obviously” guilty defendant must be proven guilty with admissible evidence beyond a reasonable doubt. Defense attorneys are there to make sure the state meets its burden of proof by making the strongest argument for their clients’ innocence as possible, whether the defendant has confessed his or her guilt or not. For one thing, a defendant often doesn’t know if he is legally guilty, even if he “did it.” For another, even if he did it, the state still has to prove it.The defense’s job in to make sure it does,

When I heard Colwin’s irresponsible commentary, I wrote:

“I am still stunned that a practicing attorney, which Colwin is, could believe such nonsense, and would say it over the air. I am even more stunned that an attorney who is so completely confused regarding the basic ethical obligations of criminal defense attorneys would be used by a major network as a regular legal analyst.”

I now realize that I was far too kind. Colwin is a disgrace Her statement was harmful, reckless, and stupid, and I wish that there was some professional rule it violated, so I could report her to her state bar for misconduct. Unfortunately, punditry is not the practice of law, and probably can’t trigger professional sanctions, even when it does real damage.

The damage aspect was brought into focus today by a comment I received from  a typical victim of incompetent commentators like Colwin and the gullible fools who put her on the air, like Sean Hannity.  L.S. Smith wrote:

“You are the ethics dunce. I heard the show and the comment was clearly made in the context of putting a lying client on the stand before a judge. It is indisputable that a lawyer cannot do that. Ms. Colwin was absolutely correct in her comments and did not mislead anyone, unlike you.”

Imagine how imbedded bad information (not to mention stubborn ignorance—shouldn’t one do a little research before so offensively defending a misconception? ) must be in the brain of a blog commenter for him to write this to a lawyer, a former prosecutor, a former defense attorney, and a legal ethicist. He is absolutely, 100%, 180 degrees wrong about the lawyer’s duty when a guilty criminal client proposes to testify to his or her innocence in trial. The defendant has a Constitutional right to testify on his own behalf that cannot be denied him (except in some jurisdictions under the nearly unimaginable scenario where every single word uttered will be false, and the attorney is certain of it), and the lawyer may not divulge any confidences that contradict the testimony.  There is no exception to the duty of a lawyer to keep client confidences that is triggered by criminal client perjury. The fact that Smith can argue that the opposite is “indisputable” shows that he is a candidate for punditry on Fox; the fact that he says Colwin was “absolutely correct” when in fact she could hardly have been more wrong shows the degree to which his brain has rotted from listening to too many bogus legal experts. Contrary to Colwin, a defendant can always choose to take the stand and say, “I am innocent of the charges against me.” That doesn’t mean she “didn’t do it,” it means the state can’t prove its case.

Mr. Smith: if you can retreat from your obnoxious certitude about a topic you know less than nothing about (believing false facts is less than nothing), you can read about the dilemma of the perjuring criminal defendant, among other places, here and here, in which a prominent legal ethicist argues that an attorney should be able to remedy criminal defendant perjury on the stand, even though he usually cannot (or should not) under current rule. It even has a name: the perjury trilemma. You have grossly over-simplified a classic legal ethics dilemma, but with false guides like Colwin, it is understandable.

8 thoughts on “The Damage Incompetent Pundits Do: Criminal Defense Misconceptions

  1. Don’t we all know that ALL defendants are owed, Constitutionally, a defense in trial? Don’t we all know that defense lawyers cannot suborn perjury, and that criminal defense lawyers most often do not put defendants they know to be guilty on the stand? Not because they know they will likely perjure themselves, but because they don’t want them cross-examined by the prosecution?

    It is within the purview of a lawyer not to take on a client; it is NOT within the purview of a lawyer to state publicly that he/she won’t take on a guilty (or thought to be guilty) client. Criminal defense lawyers — hard to understand, I’m sure — are an integral part of our Constitution-based legal system: the other parts being the prosecution, the judge, and not incidentally, the jury.

    Many criminal defendants are in fact found not guilty — not because of some technicality, but because someone (police, the prosecution) either made a mistake in accusing the defendant, and/or could not prove within a reasonable doubt that the defendant was guilty. This is our system.

    Mr. Smith is not only an ethics dunce — he is a legal dunce. Know you own legal system before attacking those who do. I am not a lawyer, but know enough to know that (1) all defendants deserve counsel; (2) many defendants will lie on the stand and it’s up to the jury to decide the veracity of their testimony; (3) a defense lawyer can put a defendant on the stand knowing he or she might lie, but CANNOT coach that defendant on how to lie (disbarment would result for the attorney); (4) and that if Mr. Smith were ever unfairly accused of a crime, he would NOT want Mercedes Colwin defending him.

    Learn your own legal system. Colwin’s public statements had to do with ethics; Smith’s post was about the legal system, and his total ignorance of it. Good luck. Just don’t get caught speeding…

  2. In his latest book, which I will not name (lest I be accused of seeking to advertise – in fact why don’t we burn them all and get rid of the problem), James Hansen says (describing the repeated behaviour of Dr Richard Lindzen disputing the reality of AGW in front of senior government officials), “A lawyer is does not seek truth; a lawyer seeks a win for a client“. This is why I could never have been a lawyer; I consider the truth (or even that which is beyond all reasonable doubt) to be too important.

  3. Ok I may be confused but I thought that a defense lawyer could not put his client on the stand and ask them ” did you do It?” And have the client lie and say “no” if the client had confessed to them that they had indeed done it.

    • A defense attorney can’t ask that, under those circumstances. He can ask, “are you guilty as charged”? The fact is, if the client is guilty and the lawyer knows it, the lawyer is an incompetent if he or she can’t talk the defendant out of testifying. The plea is “not guilty” after all. The defendant isn’t committing perjury to just repeat the plea.

  4. A defense attorney’s main job is not to prevent bad people from going to jail.
    A defense attorney’s main job is to prevent bad people from becoming D.A.’s.

    –Dwayne

  5. I can’t help but think that this is walking a very fine line, Jack. No one disputes that an accused person has the right to a fair and speedy trial before a jury of his peers. Nor, I think, do any dispute the confidentiality between counsel and client. However, an attorney should have the right to choose his own clientele. Nor should there be a system that incentivizes deliberate falsehood as a prerequisite to the successful defense of a criminal one knows to be a criminal. I can understand presenting extenuating circumstances in such a client’s defense. But, quite frankly, I couldn’t live with myself if, as an attorney, saw an ardent criminal walk free due to my efforts. It would be like sharing the blood on his hands.

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