A Desperate Defense

Apparently (but not really surprisingly) the defense team for Brian David Mitchell has decided to stand up as a prime example of exactly what is wrong with our justice system today.

They started this case by trying to get a change of venue. That was understandable although I don’t think we have an extradition agreement with Antarctica – the only place on the globe where there would be zero bias against their client. When that failed they said in their opening statement that they did not dispute the facts of the case. Now, after the prosecution has rested their case and the defense has had a day to call their own witnesses they are apparently desperate because their first witnesses have already shown that the insanity defense they had intended to argue is absurd. (Their client being certifiably insane is not absurd but the idea that he is not fully responsible for his actions is absurd.)

Three weeks into the trial they have suddenly discovered that one of the charges against their client may not be technically accurate.

This is not the action of a legal team seeking to ensure that justice is done but rather the action of a legal team who is willing to do anything to win their case.

In a healthy justice system both the prosecution and the defense legal teams would be working for the same goal—namely the goal of finding the true criminal(s) in the case and ensuring that they receive the appropriate consequences for their criminal behavior.

Unfortunately in our win-at-all-costs justice system the defense team is hoping that their client, who is obviously guilty and who has repeatedly shown that he has the dangerous attitude of thinking that he is above the law, will be able to get out of this with nothing more than a very badly damaged reputation.

About David

David is the father of 8 extremely organized children (4 girls / 4 boys) who is constantly seeking answers to tough questions related to parenting, education and politics while moonlighting for 40 hours each week as a technology professional. He also enjoys cooking, gardening, and sports.
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6 Responses to A Desperate Defense

  1. There are still some countries, notably France, that use a system (inquisitorial) where everyone involved is seeking the truth, but here in the USA this has never been the case. We follow the English adversarial tradition in which the point is to win.


  2. The Writer says:

    I think what you are missing here is that the system actually works…with caveats. It is true that there are a lot of systemic problems, but that both defense and prosecution are given the opportunity to use all the tools available to them to zealously defend their client allows the defendant to have the closest thing to a fair trial.

    By allowing what you term, I think accurately, a win at all costs justice system, we allow innocents to put up a more fair defense, and puts the onus of the state, on the government, to prove they have the right man. With the advent of the DNA testing, it has been well documented that government attorneys, as well as law enforcement, tend to have all the cards in their hands and have the ability to get a conviction far more readily than the innocent have to escape unjust prosecution. By appointing a “seeker of truth,” you are assuming the seeker of truth is without bias, without ability to be influenced, and able to bring all the information necessary to accomplish a just trial. That’s just wishful thinking.

    One very significant part of the justice system that your commentary also discards, almost without comment, is the “innocent until proven guilty” aspect of our system. It may be apparent to the world that BDM is guilty, but part of what allows our system to give the real innocents a fighting chance is to treat the BDMs of the world with the same rules as the unjustly accused. There is a risk, albeit small I believe, that the BDMs are given opportunity to escape justice, but I think that risk is far smaller and more worth the risk, than is the risk of convicting the innocent.

    France, which Daniel Sellers holds up as an example of such a system as you suggest, is not without problems. The justice system, led by “magistrate” investigators, is, as one article said “archaic, secretive, slow and inefficient.” And that’s coming from the French. They are not happy with it, and recent years have seen President Sarkozy proposing reforms that would make it more adversarial, after the British model.

    Don’t tie the hands of defense attorneys. It is their job to defend more than just BDMs innocence (until proven guilty); they are defending a whole system of checks on the government’s power to pull people off the street for any crime they want. Indeed, the checks that the defense attorney represents are one of the most important to our liberal democracy.

    • David says:

      Perhaps I should explicitly state that yes, the system generally works and that I am in favor of any accused person having the opportunity to present a robust defense. That being said, I think there is a gap between “win at all costs” and “a robust defense” and this goes beyond robust defense.

      The case against BDM is not an instance where we might not “have the right man.” Even the defense team has explicitly admitted that as a fact. Their intention was to show that based on his lack of sanity BDM was not responsible for his actions. I consider that to be a perfectly reasonable approach. The thing they have done that disturbs me is that once it became apparent that their insanity defense was unlikely to result in a “not guilty” verdict they switched tacks and began to argue that the charges were inaccurate. If the charges were inaccurate they should have been making that argument first, even before jury selection, rather than trying to use it as a back door.

      Now that both prosecution and defense have both acknowledged that BDM is the right man and that he commuted the acts in question it is time for the defense to either pursue their “not guilty by reason of insanity” argument or else to focus their efforts on ensuring that the sentence imposed does not exceed the severity of the acts for which he has been found guilty.

      I am not trying to tie the hands of the defense team—at least not before their clients innocence has been disproven.

      • Bill says:

        If both sides of the BDM issue were to “Seek Truth”, there would be no reason for a trial, we could skip straight to sentencing, which means we can argue sentencing faster… It also means that there is no need for a trial, which would not work for our system. Furthermore, our system has statutes for sentincing, so the one way for BDM’s lawyers to try to minimze his sentince is if they can change the charges against him.

  3. The Writer says:

    Excellent point, David, and a relevant clarification. Part of the defense’s job, in addition to seeking innocence, is seeking the right sentence. 99 percent (don’t quote that number) of cases never go to trial, due to plea dealing. Even in those situations, defense counsel is always there to advise on their rights, assure justice is not heavy handed and that make sure the defendant is not abused by the system. Additionally, the defense counsel is there to assure that the rights of the society are looked at.

    The follow up is that there are penalties for frivolous or obnoxious arguments. The system allows judges, and opposing counsel, to seek penalties against attorneys that bring arguments that are patently frivolous or that are inappropriate. In this case, while I agree that it is not a case of “do we have the right man,” this is not Texas in the 19th century. We don’t string people up by ropes because they broke the law (even for rape). “Due process” demands that laws be followed, that person’s have a fair chance to be convicted of the right thing, that prosecutors be held to account for their conduct, etc.

    BDM is going to get it. But he, and we, have a right to see that the process is thorough, that there is no opportunity for him to appeal down the road that he had “inadequate counsel” or that all possible arguments were made. When he goes to prison for life, every judge who sees him appeal can look back at the record and say: “He had a fair chance and the appeal is denied.”

    • David says:

      I was not aware that there were penalties for attorneys who bring up frivolous or inappropriate arguments. That makes me feel much better. In a way I am glad that the defense team is willing to flirt with such penalties to ensure that BDM has no opportunity to appeal under the argument that he was not vigorously defended.

      Even in the case of BDM I agree that every defendant should have a fair chance to be convicted of the right thing (well put there). While I think that we frequently under-sentence on cases of this type (why should he be able to continue to live as a leech on society—even in confinement—after what he has done?), I admit that is an issue for the legislature rather than the courtroom.

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