We Don’t Need No Stinkin' Zealous Advocacy

by Marc J. Victor
by Marc J. Victor

Back in the good old days when Americans were interested in freedom, criminal defense attorneys had an ethical duty to zealously advocate for their clients. The concept being that an adversarial system of justice was more likely to produce just results than an inquisitorial system of justice. However, the Arizona Supreme Court recently decided that the age-old duty of zealous advocacy is no longer appropriate. Attorneys in Arizona now have no such ethical duty.

I interpret this change to mean the government has determined it is no longer in the government’s interest for criminal defense attorneys to be zealous when they fight the government. No kidding. One could expect nothing different so long as the government supplies all the judges,¹ the prosecutors and strictly regulates all criminal defense attorneys. Imagine a situation where one baseball team unilaterally approves and pays the umpires and determines who plays for the other team. You wouldn’t be shocked when they picked players for the other team who agreed not to play too zealously.

I recently tried a case for a client who was charged with a crime arising out of a bar room brawl. I suspected² the arresting police officer wouldn’t be able to identify my client at the trial but would nonetheless testify under oath that he could.^3,4,5 On the day of trial, I asked my client to sit in the back row of the courtroom while his uninvolved friend accompanied me at the defense table. I informed the court my client was present in the courtroom and we were ready for trial.

As expected, the officer testified under oath that the friend sitting next to me was the man he arrested. He was absolutely certain. I immediately informed the court that I did not agree the officer had identified my client.⁶ After the government rested its case, the friend testified revealing his identity. After some expected legal wrangling, the judge entered a judgment of acquittal. My client was thrilled. The aggravated prosecutor stormed out of the courtroom.

Months later, I learned the prosecutor’s supervisor filed a bar complaint against me alleging I misled the court and an investigation was commencing.⁷ My state granted privilege to enter into voluntary contracts with adults for representation was at stake. To his credit, the elected⁸ judge backed me and signed an affidavit stating I did nothing to mislead him.⁹ This did not deter the bar or the prosecutor who was determined to punish me for misleading the judge who says he was not misled. Indeed, the prosecutor argued to the bar that the judge’s opinion about not being misled was not relevant.¹⁰ After months of haggling, the state bar grudgingly admitted I had not violated any ethical duties and the complaint against me was dismissed.

Despite the fact that we all know what happened that day in court, no complaint was ever filed against the government police officer. No government investigation was commenced against the government police officer. None was expected. Government courts have ruled that government police officers are permitted to lie to citizens all they want. They often do. However, government prosecutors often charge citizens with crimes if a citizen lies to a government police officer.

So long as the government administers the criminal justice system, only the government will be protected. Whenever you find yourself in a government court fighting the government, remember that the government doesn’t want your attorney to have an ethical obligation to zealously represent you. They want your quick plea of guilty and the accompanying fines and various sanctions which now include your DNA in many cases. Although it may seem unfair, I’m sure the government set up this system with only our protection in mind.¹¹

Notes

1. My short-lived tenure as a superior court judge pro tem is a great example of how the government establishment deals with dissenting opinions among judges.
2. No; I knew for sure.
3. He would simply look at the defense table and point to the person sitting next to me and testify that was the person he arrested. This mundane exercise occurs in virtually every criminal trial masquerading as an important part of the case.
4. Actually, comparing my pretrial interview with the officer to other witness interviews, I expected the officer would lie about several facts at the trial.
5. Not all police officers lie. However, a recently retired prosecutor told me the percentage of police officers willing to lie under oath has been on the rise and is shockingly high.
6. I didn't want to sit idly and permit the court to make an erroneous finding that the friend sitting next to me was indeed the defendant.
7. Pay no attention to what seems like a connection between the prosecutor, the state bar and the court. They are not connected at all. Really. No, really.
8. Judges in the higher courts are appointed by the governor after being carefully screened by a carefully screened committee. It has been my experience that some elected judges have a degree of independence; unless it is time for re-election.
9. Actually, he was surprised a bar complaint was filed and stated the prosecutor was upset about being out lawyered.
10. Apparently, the prosecutor thought the judge was misled about being misled. I wonder how many cases were not receiving enough attention from prosecutors while this prosecutor was busy protecting the judge from his views about being misled.
11. Yes, I’m kidding.

January 10, 2004

Marc J. Victor [send him mail] is a practicing criminal defense attorney with the law firm of Victor & Hall, P.L.C. in Mesa, Arizona. Here is his firm's website.

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