When the Lawyer Knows the Client is Guilty:
Legal Ethics, and Popular Culture
The question of what a criminal defense lawyer should do when the lawyer knows for certain that the client is guilty of the crime has bedeviled legal ethics for as long as that subject has existed. This talk is a shorter version of a paper Richard Weisberg will publish on the subject.
Let me start by recounting a couple of notorious trials in which a defense lawyer knew his client was guilty.
The first is the Courvoisier case, set in England in 1840, and described in detail in my colleague David Melinkoff’s 1973 book The Conscience of a Lawyer. A English nobleman, Lord William ...view middle of the document...
His 3-hour closing was extremely emotional and he managed to suggest that the other servants had something to do with the crime without actually saying so. The jury found Courvoisier guilty of murder, his appeal failed, and he was hanged.
Soon, an ethical scandal engulfed Phillips and it haunted him to his grave. Courvoisier had maintained his innocence until he saw Piolaine walk into the courtroom. He then confessed his guilt to Phillips, but insisted that Phillips continue to represent him.
Soon word of this got out. There was an immense outcry against Phillips in the press. Not only laymen but many (though not all) lawyers condemned him for his aggressive defense and his reputation never recovered.
Lest you think this is ancient history, the current story of San Diego lawyer Steven Feldman and client David Westerfield is sobering. Westerfield was charged with abducting and killing a little girl named Danielle Van Dam, but her body had not been found. During plea bargaining, the prosecutor offered not to seek the death penalty if Feldman would disclose the location of the body. Since Feldman had that information, he knew beyond any doubt that Westerfield was guilty.
Before a deal could be struck, the police found the body and the plea bargain collapsed. The case went to trial and Feldman conducted an all-out defense. In cross examining Danielle’s parents, Feldman brought out the fact that they had held sex parties in their home, suggesting that a guest at one of these parties might have killed the girl. Obviously, this was highly damaging to the parents’ reputation, yet Feldman knew the inference he was seeking to raise was false. Westerfield was convicted and is presently on death row.
The sequel to the trial mirrored Courvoisier: there was a tremendous outcry in the local press. Conservative TV commentator Bill O’Reilly ran numerous segments on Fox News and demanded Feldman’s disbarment. Feldman and his family were shunned. According to Feldman, the San Diego Bar Association’s phone answering machine said “if you want information about the San Diego Bar Association, press 1; if you want to complain about Steven Feldman, press 2.” In fact, Feldman’s actions fell within the accepted conventions for criminal defense and the storm blew over. But the public response to Feldman’s conduct bears an eerie resemblance to what happened to Charles Phillips 165 years ago.
b. Criminal defense of the client known to be guilty. How a lawyer who knows the client is guilty should conduct the defense is highly contested; meanwhile popular culture has its own unique perspective.
Obviously there’s an issue of epistemology here: does a lawyer ever really “know” the client is guilty? Richard and I will deal with this problem in our published paper but for present purposes let’s assume that the lawyer has complete certainty of the client’s guilt.
Here’s a frame that may be helpful in thinking about the lawyer’s dilemmas: strong vs. weak adversarialism....