We Don’t Need No Stinkin' Zealous Advocacy
Marc J. Victor
by Marc J. Victor
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.
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.
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.
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.
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.
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.
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
- My short-lived
tenure as a superior court judge pro tem is a great example
of how the government establishment deals with dissenting opinions
- No; I knew for sure.
- 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.
- Actually, comparing my pretrial interview with the officer to
other witness interviews, I expected the officer would lie about
several facts at the trial.
- 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.
- 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.
- 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.
- 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.
- Actually, he was surprised a bar complaint was filed and stated
the prosecutor was upset about being out lawyered.
- 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.
- Yes, I’m
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
© 2004 LewRockwell.com