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Volume 22, Number 1 (1997) reprinted by permission Oklahoma City University Law Review DRAMATIZING ON FILM THE UNEASY ROLE OF THE AMERICAN CRIMINAL DEFENSE LAWYER: TRUE BELIEVER CARL M. SELINGER* Oklahoma City bombers and the suspected Unabomber may well intensify the public's concerns. A promising first step in restoring public confidence might be for us to ask ourselves what exactly it is that we, as generally law-abiding members of society, do and do not want our criminal defense lawyers to do; the 1989 Columbia Pictures film, True Believer,2 provides an excellent vehicle for such a re-examination. Eddie Dodd, the title character in True Believer, is a criminal defense lawyer who does all of these things. The central plot of the movie involves the successful efforts of Dodd (vibrantly portrayed, with real wit and style, by James Woods), his idealistic new law graduate associate, Roger (played by Robert Downey, Jr.), and a female private investigator friend, Kitty, to free from prison a young Korean-American tough, Shu Kai Kim, who was framed by the authorities eight years earlier for a gangland killing in New York's Chinatown, in which Shu was picked to be the fall guy because he physically resembled the real killer. Earlier, in the '60s, Dodd, who still wears a graying ponytail and smokes pot, was famous for his defense of political radicals, anti-war protestors, black militants, and Native Americans who engaged in civil disobedience and even violent crimes to further their goals. Now, in the '80s, he argues forcefully on behalf of his clients against investigatory practices like illegal arrests, unreasonable searches and seizures, and improper eavesdropping and use of informants that could victimize or at least embarrass even the innocent. So far so good. The problem with Dodd, and the problem with the role of the American criminal defense attorney, is what he does with the rest of his time. Moreover, putting the prosecution to its proof before a jury usually involves more than a sterile examination of the prosecution's evidence against the defendant, even when the defendant does not testify on his or her own behalf or offer other evidence. As one expert on lawyers' ethics has observed, "the effective defender cannot simply protest that the prosecution has not made its case. Rather, she must introduce and embellish plausible alternatives to the prosecutor's explanations."3 According to another expert, "effective trial advocacy requires that the attorney's every word, action, and attitude be consistent with the conclusion that his client is innocent."4 This can mean arguing, or at least implying, for example, that the defendant was not even present at the scene of the crime, that the defendant has been misidentified as the perpetrator, or in the case of some drug dealing arrests, that the police planted the drugs in question or that the drugs were only for the defendant's personal use. But what if the defendant is guilty? Eddie Dodd says of his drug clients: "Everybody's guilty. Everybody." And, referring to Shu, he thinks he sees "an innocent man. Not too many of those in my line of work." It is not just that from the evidence against his clients, Dodd believes, or even thinks he knows, that they are guilty. As the American Bar Association's original 1908 Canons of Professional Ethics wisely stated: "It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense."5 Rather, it is that Dodd's drug clients seem to have admitted to him that they are guilty6 --either explicitly or implicitly, by not protesting their innocence as you or I or any other innocent victim of suspicious circumstances would. The accused dealer who gets off at the beginning of the film tells Dodd sneeringly that his performance in court was "amazing horseshit," and he muses as he gets into his Porsche, "Eddie Dodd--every man should own one." Dodd gets his fees paid in stacks of small greasy bills, wrapped in brown paper. His young associate, Roger, complains that "we're pledged to protect every mid-level drug dealer in the tri-state area." Comparing her snooping on clandestine lovers with Dodd's work, Kitty says, "it beats getting paid in twenties by slime dogs selling angel dust to high school seniors." There is no indication that any of Dodd's drug clients are protesting their innocence; and when Dodd has doubts about Shu's innocence, which he desperately wants to believe in, he talks about "going back to defending scumbags." Roger, a former law review editor at the University of Michigan Law School who turned down lucrative job offers from big Chicago firms because of his admiration for the work that Dodd used to do, accuses him now of "invoking exalted legal arguments to get off guilty little pricks." Of Roger's own present involvement with Dodd, Kitty snaps in both their faces that, "you know, a law degree is a terrible thing to waste." Even Dodd's secretary responds sarcastically to his report of a legal victory for a drug client: "Score another point for truth and justice." Meanwhile, Dodd tops off hard days in the courtroom listening to Jimi Hendrix records and getting stoned (which he only stops doing when he begins to represent the innocent Shu). guilty," and argue that their guilt has not been proved.7 In the O. J. Simpson criminal case, there was essentially nothing that Simpson's lawyers actually did at trial that they could not ethically have done if their client had told them at the outset that he had deliberately killed Nicole Brown and Ron Goldman. But given that Eddie Dodd is permitted to try to get his admittedly guilty clients off, why does he believe, or at least say, that he is justified in doing it? Initially, Dodd insists that "the last struggle for constitutional rights is being waged over drugs." Perhaps he is referring here only to his efforts to combat illegal searches and seizures, etc.; he does say that he is trying to "check the government's attempts to abridge our civil rights . . . to trample on the Fourth Amendment." But he may also be claiming that always contesting the prosecution's case is a further important protection for the rest of us: if the government could get convictions against the guilty on the basis of weak evidence, the next thing you'd know, they would be charging, and sometimes even convicting, the innocent without much proof.8 Further, after Dodd's first frustrating interview with Shu at Sing Sing, where Shu has recently killed a white supremacist inmate in self-defense, and before Dodd is sure that Shu is innocent of the original gangland killing--"Only God and Shu know if he's guilty, and neither one is talking"--he tells Roger that "the guiltier he is, the more he needs us. He's a victim, Roger. He deserves to see the sun again, breathe the air. Been in prison too goddamn long." Here, Dodd seems to be offering two other justifications for contesting the prosecution's case even on behalf of admittedly guilty defendants. First, there is the justification that by comparison to the rest of at least the western world, the criminal penalties prescribed by law in the United States tend to be draconian in their severity, and that the only way to get them down to a reasonable level is through plea bargaining with the prosecution for reduced charges--which is possible only if the defendant has pleaded not guilty to the charges originally filed.9 In the film, Eddie Dodd is shown plea bargaining for his drug clients; he turns down a bargain in the Shu case, offered by the very same zealous, but worried, Manhattan District Attorney, who as an Assistant DA had framed Shu in order to protect the drug informant who actually did the killing because the informant's wife was having an affair with the murdered mobster. Second, Dodd may well be suggesting that our whole system of criminal corrections is such a disaster for society as well as for the individuals concerned, given its failure to try seriously to rehabilitate offenders, and the fact that conditions in many prisons tend to produce even more embittered and dangerous ex-convicts, that even admittedly guilty defendants should be kept out of the system if possible.10 The film provides still another justification for trying to get all defendants off when it shows Dodd being asked to represent Shu by Shu's dignified, loving, and barely English-speaking mother: innocent family members and others are almost certain to be hurt, personally and often economically, when anyone, however guilty, is sent off to prison. But is Dodd really convinced that overall he has been performing a public service? It does not look that way. He tells Roger, "we've acquitted coke, speed, and angel dust dealers." He tells Kitty, he has spent "ten years defending nothing but scumbags." When it looks as though the hopefully innocent Shu has admitted his guilt to a fellow prisoner (a fellow prisoner who is in fact perjuring himself), Dodd says to Shu, "I thought we were like two sorry assholes who needed each other, could help each other." It could be that what has really sustained Eddie Dodd since the sixties (besides pot and Jimi Hendrix--he does not seem to have close personal relationships or an active sex life) is an ability to view a criminal trial as mainly a competition, like a sporting event, in which the goal is to defeat the prosecution.11 When Roger suggests at one low point in the representation of Shu that they are doing the best they can, and putting up a good fight, Dodd exclaims angrily, "don't give me that liberal yuppie bullshit about a good fight. This isn't Yale. A good fight is one you win." Vince Lombardi could not have put it better. Or it could be that, deep down, Eddie Dodd enjoys being a kind of entertainer. The words of a reflective real life criminal lawyer seem to fit Dodd's flamboyant personality all too well: The fact that the lawyer's performance was in front of an audience added an important dimension to the enjoyment of the experience. All eyes were focused on me. The jury was composed of twelve critics to be persuaded; they watched my every movement. Spectators filled the courtroom to cheer their favorite players. The witness, the client, the court attendants, the court reporter taking down every word--all were there to see and appreciate. I could feel very important and special. A friend of mind [sic] once told me, "When I'm trying a case, standing there in front of a jury, it's the only time I feel totally alive."12 have explicitly or implicitly admitted their factual guilt: that is, admitted having actually done the physical acts charged, with the requisite criminal intent, and without a legal defense (selfdefense, insanity, etc.)? The explanation probably lies less in any public policy than in an assumption that the treatment of a defendant's factual guilt or innocence for purposes of lawyers' ethics should follow from the way the question would be treated at a later trial. In a criminal trial where the defendant does not testify on his or her own behalf and does not offer other evidence, the only issue in the eyes of the law (if not in the eyes of the jury) is whether the defendant appears to be guilty beyond a reasonable doubt through the exceptionally narrow keyhole, even for the law, of the evidence in the prosecution's case. His or her factual guilt or innocence comes to seem almost irrelevant.14 A prominent contemporary defense lawyer was probably not exaggerating much in observing recently that, "there's the real world and the world of the courtroom. What matters is: What is the government going to prove? Not: What actually happened."15 Therefore, it seems natural in such cases to treat the defendant's admission of factual guilt to his or her lawyer as actually being irrelevant. As one defense lawyer turned law professor has put it, "the defense attorney may well be able to know the truth, but can be indifferent to it because it is the state's case, not the client's with which he or she is concerned."16 Treating a defendant's factual guilt or innocence as irrelevant led to some exchanges with reporters at the outset of the prosecution of Timothy McVeigh for the Oklahoma City bombing that could only have seemed bizarre to the public. Invited by a Newsweek interviewer to assert his innocence of the crime, McVeigh reportedly responded, "we can't do that," having earlier stated that, "the only way we can really answer that is that we are going to plead not guilty." And McVeigh's lawyer, Stephen Jones, felt called upon to deny that he had ever said of McVeigh that, "he's innocent."17 The artificiality of looking only at the appearances created by the prosecution's case is in turn the product of two "silence doctrines" that are usually assumed to be constitutionally mandated, but do not apply in civil lawsuits, and can frequently get in the way of a serious search for the truth: the right of a criminal defendant to refuse to appear as a witness, and the rules that prevent the defendant's refusal from being used against him or her to create an inference of guilt.18 Even U.S. Supreme Court Justice John Paul Stevens has conceded that, "experience also justifies the inference that most people who remain silent in the face of serious accusation have something to hide and are therefore probably guilty; yet we forbid trial judges or juries to draw that inference."19 However, one needs to be careful about broad statements, sometimes by lawyers, that the law never takes into account, or even cannot take into account a person's factual guilt or innocence of a crime: that is, that no one can ever legally be found to have committed an act that is a crime absent a criminal conviction for the crime. Even in criminal cases, a defendant's factual guilt of other crimes is taken into account when it comes to sentencing. Once a client of Eddie Dodd had been convicted of one crime, the prosecution could try to get a stiffer sentence by proving that the client was factually guilty of other crimes, even if he or she had been legally acquitted of those charges.20 In civil lawsuits, where the silence doctrines do not apply, factual guilt or innocence has also been recognized as a legal issue. The successful civil suit against O.J. Simpson is one example. Further, if one of Eddie Dodd's convicted former clients sued him for legal malpractice, the client would, in some states, have to prove not only that he or she would not have been convicted if Dodd had been careful, but also that he or she was factually innocent.21 Therefore, it is hardly inconceivable that in the future criminal defense lawyers might be ethically required to take account of defendants' admissions of factual guilt. Historically, there seems to have been a very deep-seated distrust and hostility toward certain criminal prosecutions on the part of our English legal ancestors. What kinds of prosecutions were looked upon that way? They were prosecutions of people for being religious or political dissidents. Indeed, it may be that governmental deprivations of religious and political liberties were so often viewed as illegitimate by later regimes, as well as by the public, that all such deprivations eventually came to be viewed as at least possibly unjust. In any event, protective English procedural rules like a criminal defendant's privilege against self-incrimination, which in its Fifth Amendment embodiment provides the basis for our American silence doctrines, arose as rough and ready barriers against the prosecution of religious and political dissidents.23 According to one noted scholar, above all, the right [against self-incrimination] was most closely linked to freedom of religion and speech. It was, in its origins, unquestionably the invention of those who were guilty of religious crimes, like heresy, schism, and nonconformity, and, later, of political crimes like treason, seditious libel, and breach of parliamentary privilege--more often than not, the offense was merely criticism of the government, its policies, or its officers. The right was associated then with guilt for crimes of conscience, of belief, and of association. In the broadest sense it was a protection not of the guilty, or of the innocent, but of freedom of expression, of political liberty, of the right to worship as one pleased.24 Seen from this perspective, Eddie Dodd's own career as a criminal defense lawyer parallels, and is a metaphor for, the evolution of our present troubled criminal justice system. In the '60s, he fully exploited, on behalf of admittedly guilty political dissidents, rules that came into being to protect guilty political dissidents, and he felt justified in what he was doing. Later, in the '80s, representing admittedly guilty drug dealers, he feels that there is something wrong. That something may be that he is misusing, in a sense, the same rules to protect people they were never really intended to protect: ordinary criminals, and indeed, professional criminals.25 First, the central role of criminal defense lawyers would probably be reconceived as one of vigorously representing the defendant's factual position, as well as the lawyer can determine it from the defendant,26 and not one of routinely trying to frustrate the prosecution. Thus, except when necessary to establish investigatory misconduct by the authorities or a moral justification for the defendant's actions, defense lawyers would probably be told that they could not ethically challenge the prosecution's case against an admittedly guilty client.27 Even English barristers have traditionally been discouraged ethically from taking the cases of admittedly guilty clients when the client's admission to the barrister occurred before trial.28 In fact, in this country there is already a rule that a defense lawyer may not ethically offer evidence that the lawyer knows to be false.29 That means that the lawyer may not present the false testimony of an admittedly guilty defendant as if it were true. Thus, for example, if O. J. Simpson had told his criminal defense counsel that he killed Nicole Brown and Ron Goldman, the lawyers would not have had a "choice" to put Simpson on the stand and question him like an ordinary witness; he would have had to tell his false story without assistance of counsel.30 This rule against offering false evidence could be extended to prohibit defense lawyers from tacitly taking a false position on the question of a defendant's guilt. Why should we want to save guilty defendants the trouble of having to lie to their lawyers or, indeed, anyone else, except for saying "Not Guilty"? Telling lawyers that they usually cannot challenge the prosecution's case against admittedly guilty clients is not, however, just a matter of improving the image of the criminal justice system, or getting more guilty defendants to plead guilty, or making the Eddie Dodds of the world feel better. It is much more a matter of the future attitudes of guilty defendants, whether they are convicted or acquitted--a matter of the sneers on the faces of Dodd's drug clients, and on the faces of alienated and violent teenagers. They sneer in real life, too. A distinguished federal trial judge, Marvin Frankel, has observed that, among the laymen who do not honor us lawyers for our dealings with the truth are many beneficiaries of such stratagems. One of the least edifying, but not uncommon, of trial happenings is the litigant exhibiting a special blend of triumph, scorn, complicity, and moral superiority when his false position has scored a point in artful cross-examination or some other feat of advocacy.31When a defense lawyer advocates a factual position that both the lawyer and the defendant know is not true, it can only serve to confirm and solidify beliefs on the part of the defendant that could have already contributed to his or her criminal behavior: namely, beliefs that all social institutions are essentially corrupt, and that practically everyone is willing to do anything that he or she can get away with that seems likely to work. As one thoughtful commentator has observed, people with legal problems frequently have troubles, in part, because they have difficulty in their relationships with others. Lawyering has therapeutic implications even though the lawyer is not a therapist. To adopt a phrase, the attorney is either a part of the solution or part of the problem. There is no way to stand apart. There are many variations on this theme. An important one is that troubled individuals frequently view their world as one where people exist principally to use each other and do not have constructive, mutual relationships. The attorney who acquiesces in being only a tool of such a client may be reinforcing those perceptions and behaviors which tend to involve the client in difficult situations.32 What of Eddie Dodd's argument that letting lawyers seek acquittals for the admittedly guilty protects all of us against being charged or even convicted on the basis of weak evidence? Concerned about this problem, the defense lawyer turned law professor mentioned earlier has proposed a fine line that would prohibit a lawyer from arguing at trial that an admittedly guilty defendant is innocent, but still allow him or her to perform the "monitoring role" of arguing that "the available evidence is not sufficient to sustain the [prosecution's] burden of proof."33 As we have seen, however, such a distinction is probably not workable.34 Nor would it appear to be necessary. Criminal cases do not go forward to trial without having first been screened for weak evidence by a neutral magistrate or grand jury. An ethics rule that allowed defense lawyers to contest prosecution cases only on behalf of defendants who claimed to be innocent, whether truthfully or falsely, would probably not do much to encourage laziness on the part of prosecutors, as they could not be sure which defendants had protested their innocence and which had not.35 On the other hand, there is considerable force to Dodd's argument that pleading admittedly guilty defendants not guilty and standing ready to contest the prosecution's case is necessary in order to plea bargain excessively severe penalties down to reasonable levels. However, an insightful commentator has recently pointed out that in the long run there is a cause and effect relationship between complex protective criminal procedures, including perhaps contesting the prosecution's case against admittedly guilty defendants, and ever more severe criminal penalties. "It is . . . not an accident that a country [the United States] with a system of criminal procedure that is the most complicated and the most expensive in the western world . . . needs to put pressure on defendants by threatening them with harsh punishments if they insist on trial . . . ."36 More broadly in terms of alternatives, like the civil law legal systems of continental Europe, a changed American criminal justice system would probably focus less on the prosecution's case, and carry on much more of a dialogue with the defendant, both before trial and at trial.37 The dialogue would relate to what exactly transpired; what the defendant did, if anything, and why; and if the defendant is guilty of some offense, what it makes sense for society to do about it. According to one expert on European criminal procedure, far from putting the factually innocent in jeopardy: Focusing the trial on the accused usually helps the innocent but hurts the guilty. An innocent defendant has a good chance to present his case forcefully and continuously. It is obvious, however, that with a weak case the accused is more vulnerable. He cannot easily sit back and rely on his lawyer to attack the prosecution's case. His lawyer is given that opportunity, but the Continental trial expects that the accused will be an active participant and will assist in the presentation of his case.38Given the heavy reliance in Europe on thorough pre-trial investigations, which usually result in uncoerced confessions by defendants,39 the eminent English travel writer and perceptive courtroom visitor, Sybille Bedford, has concluded that, "the sporting spirit, the notion of the law as a game of skill with handicaps to give each side a chance, is entirely absent on the Continent."40 In a changed American system, the Supreme Court could have determined that our present silence doctrines are not constitutionally mandated, and could be limited legislatively or judicially in the interests of promoting dialogue with defendants.41 But even if defendants continued to have the option of taking advantage of the silence doctrines, they would be encouraged in two ways to participate in the dialogue. First, we would abandon "our dysfunctional rule that previous convictions of the defendant can be proved if, but only if, he takes the stand."42 At present, the defendant's record can usually be brought out only after conviction, at the sentencing stage, or to attack the credibility of the defendant if the defendant testifies in his or her own behalf--which has the effect of discouraging defendants with records from testifying, whether they are factually guilty or innocent. Depending on how one balances the probative value of admitting the records of guilty defendants against the prejudicial effects of admitting the records of innocent defendants, the discouragement could be avoided either by admitting the records whether or not defendants testify, as in France,43 and Germany,44 or by excluding them in either event, as in England.45 Second, defendants would be encouraged to participate in a dialogue with the criminal justice system by the fact that the consequences of being found guilty would be less harsh, less like "falling off a cliff."46 Sybille Bedford has observed that: "In the German trial courts, two things stand out. One, not unexpectedly, is the overwhelming preponderance of cases in which guilt is a foregone and confessed conclusion, the other the enlightened mildness guilt is dealt with."47 The idea here would be that much criminality, even some professional or habitual criminality, is profoundly situational, and needs to be understood in light of the defendant's personal life experiences. Referring to a fictional country modeled on the Netherlands, with a criminal justice system that actually looks at criminality in that way, an American expert asked recently: "Would lawyers in such a system see it as important, as do American defense lawyers, to instruct their clients at the station house categorically not to talk to the police and not to waive any right or consent to anything?"48 Of his drug dealer clients, Serra says, "I don't consider my drug clients slime."52 Instead, he regards them as victims of economic and political circumstances. "I respect (drug dealers) because the heart of what they're trying to do is better their condition. They're trying in their fashion the only way they have of getting out of the ghetto."53 Obviously, a criminal justice system that is not going to just write off guilty defendants by incarcerating them in prison under mandatory minimum sentences, but instead is going to make a real effort to talk to them, to understand them, and to rehabilitate them, is going to have to be a much more personalized system than the one we have today. But that is neither impossible to imagine nor unaffordable economically. For example, under an experimental program in Baltimore, some youthful offenders are allowed to continue to live at home and go to school, but under the scrutiny of probation officers who see them face to face three to five times a day, seven days a week, for up to six months! That kind of guidance can clearly have a real impact on a young person's life; and it costs about $ 7000 a year per offender, instead of the $ 70,000 it would cost to commit him or her to a traditional institution.54 However, if it would be better to have a different system for ordinary criminal cases, wouldn't it be possible to just single out political and religious cases for special treatment and let the others be handled as they should be? Indeed, it would be relatively easy to provide special treatment when the charges were explicitly based on peaceful activities that we have traditionally recognized as religious or political in character. But going farther would clearly be controversial. If Eddie Dodd's clients who used violence to protest the war in Vietnam merited special treatment, how could it be denied to defendants charged with shooting a physician who performed abortions or bombing a federal building? If we are prepared to give special treatment to those charged with assisting others to commit suicide, on the basis that such a charge is "political" in the sense that the activity in question may not be regarded in the future as criminal at all56 --a criminal law scholar has pointed out that, "many of the crimes of a century or two ago no longer exist"57 --what do we do with the following speculations by the same scholar? "Today . . . we are particularly upset by certain crimes, such as sex offenses and narcotics violations. Yet even here there is growing belief that these offenses should not be treated criminally at all, but should be recognized as psychiatric or medical problems."58 Further, how would we be able to get at other disturbing situations in which politics had entered into decisions whether and how to prosecute people for non-political offenses? The Shu case itself provides an example: Shu was not prosecuted for a political offense; he was prosecuted for a gangland killing. He was framed, though, because an ambitious Assistant DA made a political decision that for the good of society and its war on drugs (or perhaps only for the good of his own career), it was more important to protect an informant on the activities of Columbian drug traffickers than to respect Shu's rights as an innocent person. Even at the end of the film, when Dodd and his associates have exposed the frame-up, the (now) District Attorney is utterly unrepentant. Shu was innocent. But claims are frequently made that politics have led to the prosecution of persons who are guilty of crimes that would otherwise have been ignored, or treated as lesser offenses, or pursued less vigorously. William Kunstler, a lawyer who was very famous in the '60s for his defense of political dissidents, once suggested that: We might follow the example of an experiment going on in one of the Scandinavian countries, where, if a defendant believes that he has been charged with a crime solely because he's active politically or has certain dissenting thoughts about government policy, he's tried in a separate court, where he may put into evidence all the reasons he has for believing he's being politically prosecuted. The government may respond by trying to prove that it's not prosecuting him for his politics but solely for the commission of a crime. If the court finds the government's proof convincing, the defendant is then tried on a criminal charge.59It is doubtful, however, that even the availability of a procedure like the one suggested by Kunstler would have caught the frame-up in the Shu case. In any event, given the controversies that would surround efforts to single out particular crimes or prosecutions for special treatment (much less to actually reduce the penalties for many other offenses), it seems likely that we are going to continue as a society to maintain only a single system for all criminal cases. We seem to be faced with a choice--a choice between a system that superbly protects our political and civil rights or a system that would deal more sensibly with ordinary crime. As far as criminal defense lawyers are concerned, there is just no way around it: if we continue to utilize a political crime system for ordinary crime, at least some thoughtful and socially conscious lawyers, like Eddie Dodd, are going to look and feel much of the time like fish out of water. The Continental trial focuses on the accused and emphasizes his side of the case. The defendant is called upon to speak first and is given the opportunity to speak last. The presiding judge focuses the inquiry on the accused, continuously involving him in the case. For example, the presiding judge will ask the accused if he wishes to respond to the testimony of witnesses throughout the trial.Id. at 480. Today, even in England, "the case in which the defendant fails to testify is 'exceptional.'" Id. at 483. 38 Id.. at 480. 39. See Rudolf B. Schlesinger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience, 26 BUFF. L. REV. 361, 382 (1977). 40. SYBILLE BEDFORD, THE FACES OF JUSTICE 163 (1961). 41. Albert Alschuler has argued that in terms of the original understanding of the Framers of the Constitution, "the Fifth Amendment does not afford a right to remain silent." Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2669 (1996). While assuming that a defendant could not be held in contempt of court for refusing to appear as a witness, he has suggested that the Supreme Court might today be willing to overrule Griffin v. California, 380 U.S. 609 (1965), which forbade comment on the defendant's refusal by the prosecutor or judge, especially if defendants were not required to speak (if at all) like other witnesses, under oath and subject to being prosecuted for perjury. See id. at 2671 n.177. Conceivably, the Supreme Court may never have thought that some aspects of the "no-comment" rule were of constitutional dimensions. See Van Kessel, supra note 37, at 540-41 n.591. In England, under the Criminal Justice and Public Order Act of 1994, if a defendant mounts any kind of non-passive defense at trial, both the prosecution and the judge can comment unfavorably on the defendant's silence during police questioning or his failure to testify as a witness. See Michael Zander, You Have No Right to Remain Silent: Abolition of the Privilege Against Self-Incrimination in England, 40 ST. LOUIS U. L.J. 659, 664, 674 (1996). 42. Schlesinger, supra note 39, at 380. See also Craig M. Bradley & Joseph L. Hoffman, Public Perception, Justice, and the "Search for Truth" in Criminal Cases, 69 S. CAL. L. REV. 1267, 1286 (1996). 43. See Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?, 78 CAL. L. REV.. 539, 677 (1990). 44. See Bedford, supra note 40, at 164-66. Here in the United States, a provision in the 1994 federal crime bill allows "evidence of the defendant's commission of other sexual assault offenses" to be introduced at federal trials for sexual assault. See Harvey Berkman, Crime Bill Sex Rule Stirs Evidence Debate, NAT'L L.J., Sept. 5, 1994, at A16. 45. See Van Kessel, supra note 37, at 481. Professor Van Kessel advocates adoption in this country of the English position. Id. at 540-41. 46. In a book about the legal system of the People's Republic of China under Chairman Mao, Victor Hao Li noted that in China when a person showed any signs of deviating from community standards, neighbors or co-workers would begin to put pressure on him or her to conform; by contrast, in this country little or nothing is done about anti-social behavior until a person is convicted of a crime, and therefore the conviction feels like "falling off a cliff." VICTOR H. LI, LAW WITHOUT LAWYERS 39, 44-46 (1978). 47. Bedford, supra note 40, at 162-63. 48. Pizzi, supra note 9, at 68-69. In France, defense counsel typically advise their clients to be forthcoming with investigators and the court in order to minimize the punishment imposed. Interview with Me. Jean Luc Vincent, an avocat, in Lyon, Fr. (July 19, 1996). 49. Sonia Taitz, "True Believer" Makes a Case for Idealism, N.Y. TIMES, Feb. 12, 1989, at 23. 50. See Paul Liberatore, GANNETT NEWS SERVICE, Feb. 21, 1989. More recently, Tony Serra defended Ellie Nesler, who had shot and killed a man as he was being arraigned for molesting Nesler's son. She was convicted of voluntary manslaughter. Mother in Courtroom Slaying Calls Jail Term Fair, N.Y. TIMES, Jan. 9, 1994, at 20. 51. Michael Checchio, Meet the Real "True Believer," LEGAL TIMES, Feb. 27, 1989, at 42. 52. Liberatore, supra note 50. 53. Robert Chow, Counterculture's Warrior Lawyer, L.A. TIMES, May 3, 1989, Pt. 5, at 1. 54. Maryland Uses New Tack With Young Delinquents, N.Y. TIMES, June 1, 1993, at D10. 55. See, e.g., INGO MULLER, HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH (1991). 56. Of course, the criminalization of assisting others to commit suicide has already been found unconstitutional by two United States Courts of Appeals. See Quill v. Vacco, 80 F.3d 716 (2d Cir.), cert. granted, 117 S. Ct. 36 (1996); Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.), cert. granted, 117 S. Ct. 37 (1996). 57. Murray L. Schwartz, The Bill of Rights and the Guilty, UCLA DOCKET, May 2, 1959, at 2. 58. Id. 59. Comments from William Kunstler (interview in Playboy magazine), reprinted in SAMUEL DASH, READINGS IN PROFESSIONAL RESPONSIBILITY AND THE ADMINISTRATION OF CRIMINAL JUSTICE 237, 239 (1971). |
