November 4, 2014

How to Get Away With Anything

The breakout hit of the new TV season, to the extent there is such a thing anymore, is How To Get Away With Murder, the latest product of the Shonda Rhimes ratings factory.  It's about a law prof who's also a practicing defense attorney (not completely unheard of), who uses four students every semester as part of her defense team (very much unheard of).  We've already learned that, in addition to helping win murder cases, they're deeply involved in one.  It's fun, in a silly, don't-think-too-much-about-it kind of way.

However, as a friend of mine pointed out on Facebook the night of the premiere, it is deeply deeply unrealistic.  As he noted, there's a handful of glaring ethical failures in just the first episode, so anybody who thought the show's title held the promise of accurate advice, think again.  Come to think of it, if your legal knowledge is gleaned solely from primetime TV, remember the old MST3K mantra: it's only just a show, you should really just relax.

Having said all that, last week's episode entered my playground - the appellate court - and completely shit all over it.  Trust me, neither the Pennsylvania Supreme Court nor any other appeals court is ever going have parties calling witnesses, much less engaging in hyperbolic cross examinations in their courtroom.  Oh, and the guy whose fate their arguing over, the defendant?  Nowhere near the place.  Prisoners don't get transported for oral arguments.  It would have been easy enough to get all this right (move the hearing to a trial court), so one wonders why they don't.

Now . . . where was I . . .

Primary among the ethical slips we've seen so far is how some of the students lie about who they are in schemes to get information to help win their client's freedom.  This might seem bold, or even clever, but it's something you simply cannot do as a defense lawyer.  That's a good thing, but it results in a odd imbalance in the criminal justice systems.

You see, cops can and will lie to you.  This recent Christian Science Monitor article sums up the situation well:
Bluffing is a common – and legal – tool in police interrogation rooms, and the art of artifice in obtaining confessions is a standard part of police training. The parameters for what police can lie about are broad, and lies can range from claiming to have evidence that does not exist to fibbing that a witness was at the scene.

Still, per US Supreme Court rulings, confessions must also be 'voluntary,' introducing a possible point of contention between an officer’s right to lie to a suspect and his or her obligation to serve justice.

'The question is, at what point does the amount of lying make the confession involuntary?' Professor Shanks says. 'There’s just no bright line on it.'
Defense attorneys, and those employed by them (like, say, young eager law students) don't have that luxury.  Rule 4 of the WV Rules of Professional Conduct (which are similar enough to others in the country to serve as an example), is labelled "Transactions With Persons Other Than Clients."  It says:
Rule 4.1.  Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
So, where cops can lie about who they are and what information they have, defense attorneys and their investigators can't.  It's a simple as that.

Which leads to cops being involved with all kinds of shenanigans that would get a defense lawyer disbarred, if not locked up.  Like this latest outrage (via) in the War on (Some People's) Drugs:
The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman’s seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.
The woman had been arrested and ultimately pleaded guilty to a minor drug charge, for which she received probation.  Her phone was seized as part of her arrest.  She was never told about the fake profile using her information (she learned about it from a friend).

Why would the DEA think they could do such a thing?
The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. 'What’s different here,' said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.

'The technologies we have now are enabling all sorts of new uses,' said Neil Richards, a professor at the Washington University School of Law. 'There are a whole bunch of new things that are possible, and we don’t have rules for them yet.'
I'd beg to differ only in that the rules are already there and the cops (which includes the DEA) knows they don't need to follow them.  The slow destruction of the Fourth Amendment, combined with the desire to let cops do absolutely anything in the name of the War on (Some People's) Drugs leads precisely to this kind of behavior.

So, while ABC may want to show us how to get away with murder, the way to get away with most anything else is pretty clear - be a cop going after drugs.

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