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1 Snarknado!  Fri, Feb 28, 2014 2:18:55pm

What part of “a 14-year-old cannot give informed consent” do they not understand? Don’t answer that….

2 EiMitch  Fri, Feb 28, 2014 3:33:06pm

30 days punishment enough? The 14 y/o was asking for it? Wtf?

I hope the rapist’s “attorneys” get disbarred, and I don’t care what for. With arguments like those, they’ve gone beyond defending their client and actively contributed to rape culture in the most blatant ways imaginable. Utterly reprehensible.

3 nines09  Fri, Feb 28, 2014 4:24:10pm

And if you ever wondered why some people loath “lawyers”.

4 ThomasLite  Sat, Mar 1, 2014 7:20:41am

Funny how every man being entitled to a vigorous defence gets thrown under the bus the moment it becomes inconvenient to some.
Really? Think real hard the next time you want to call someone else a fascist or whatnot please, EiMitch.

The whole fething point of the system is that the attorneys try any and every damn trick in the book (and really, diverting blame isn’t even close to creative) - and then the judge (and or panel of 12 frelling idiots - you silly Americans…) throw out anything that didn’t make (enough) sense altogether.

If a judge uses that argument - feel free to rail against his judgment, and perhaps (and in this case, likely) his competence to sit at all.

If, however, an attorney does take a case, and then even hesitates in providing as vigorous a defence as he can - *that’s* the one to disbar.
And put behind bars, if I had it my way.

Sorry, but even to this boring contract law specialist (I’d be surprised if I ever did a minute of criminal defence, except perhaps some white collar stuff if it came up and I had to assist), you’re gnawing away right at the foundation of all that’s good and holy (and what little of it, for what I know of criminal justice in the US at times…) to satisfy your own gut. Blegh.

5 ThomasLite  Sat, Mar 1, 2014 7:22:54am

re: #1 Snarknado!

What part of “a 14-year-old cannot give informed consent” do they not understand? Don’t answer that….

And just for completeness’ sake, ^^this is probably pretty close to the exact argument to dismiss this argument with, at least in all cases other than statutory rape.

6 Fairly Sure I'm Still Obdicut  Sat, Mar 1, 2014 7:28:11am

re: #4 ThomasLite

A vigorous defense does not mean you have to actually advanced bullshit arguments:

“The citizens of Montana have determined that persons as young as 12 years of age will be held accountable and responsible for their actions in regard to certain types of sexual offenses,” the attorneys wrote. “There is no rational basis to conclude that if the person is 12 years of age, the person can only have responsibility if they are the offender.”

Their argument is against statutory rape laws. They are not arguing the law, they are arguing that the law is wrong.

You can do that, as a lawyer, but if you do, you better actually believe the law is wrong, you better actually be fighting for justice.

So, if these guys are honest, they are fighting against the concept of statutory rape, and arguing that our laws that say a fourteen year old doesn’t bear responsibility when her teacher rapes her are incorrect, that she should be examined for blame.

I think that there is no reason why we both can’t have laws saying that if a 14 year old commits a sexual offense they are culpable, but if they are instead the victims of an offense by an adult they are obviously not culpable.

Do you disagree, and agree with these lawyers that the law should be changed? Do you understand the difference between using the law to argue a spirited defense and arguing against the law itself?

7 ThomasLite  Sat, Mar 1, 2014 7:47:35am

Hmm, that deserves a rather long and complicated response. I certainly don’t agree with the point they’re making (let alone insinuating) from what I’ve seen. Then again, any litigator trying limiting himself strictly to arguing the obvious is probably doing his client a disfavour, so I will rail against anyone conflating an attorney’s argument in adversarial proceedings with what he might think to be a good policy argument or whatever any day of the week.
From what I’ve seen of you, I think we can agree there, at least?
And wouldn’t you agree that arguing in favour of attorneys getting disbarred for a vigorous defence, even if the argument is hopeless, is offensive? (and really, every criminal defence practitioner is going to have a dog of a case to at least try to defend at times - heck, that’s often where the societal value of defence can be the greatest, even if that might not be the case here).

Really, as soon as they try this in a political context I’ll agree they ought to be dragged through the mud. Arguing “the law is wrong”, however, is just the pounding the table stage, when both fact and law are against your client already. Again, vigorous defence and whatnot.
Also, the argument seems a little more complicated: they’re arguing development in one field (liability for minors) should perhaps reflect in another, related, field. That’s not so much using a grey area as trying to find one, but it’s not an argument that “the law is wrong” out of the blue. Nitpick, though, and not really one I find all that important, even.

As to age of consent, that’s always a tricky one.
I do think that, given certain conditions, there are plenty of minors who know pretty well what they’re doing. Criminal law is not my field, and the US is a heck of a long way away so please correct me if I’m wrong, but AFAIK there have been several examples of kids sexting and getting convicted for child pornography for example, or the ever present 17y old with a 15y old partner whose parents hate said 17y old; I do prefer the way that Dutch courts, at least in practice, tend to ascribe more appropriate amounts of agency/capacity on an individual basis rather than the by-the-numbers approach.

Now, does any of that reflect on other-than-statutory sex offences? Not really. While I will argue that at least, one should consider the possibility of informed consent by minors (to a degree, of course - I hope you’ll be above the usual strawmen one might encounter here - we’re all reasonable folks :) ); I have no problem accepting (actually, I’m quite in favour of it) that anything even remotely forceable against a minor should not ever, ever have a snowball’s chance in hell of seeing such an argument succeed.

Then again, I find the whole “but she kinda provoked it” argument even in mitigation of forceable rape/ other sex offences against adults equally offensive, so in my ideal world no distinction would be required. Still, since that seems to be a thing now, and for the foreseeable future, let’s keep it out of cases involving minors especially for now.

None of that, however, changes one iota of my point that (and let’s explicitly state the previously implied premise here, too:) as long as either judges or juries, or both, depending on what might make a difference, do ascribe some value to such offensive arguments (and let’s be honest - they do), any attorney not at least having a go at it if it might work to his client’s advantage is, IMO, severely unethical and should be disbarred if he even remotely makes a habit of taking cases he seemingly cannot, in good faith, defend as vigorously as he ought to. Adversarial system, and whatnot.
And yes, I’m reasonably well aware of the difference between attorneys as officers of the court in the US, and the lack of such a formality here - but it doesn’t make a difference in the world to my mind.

8 Fairly Sure I'm Still Obdicut  Sat, Mar 1, 2014 7:53:42am

re: #7 ThomasLite

And wouldn’t you agree that arguing in favour of attorneys getting disbarred for a vigorous defence, even if the argument is hopeless, is offensive?

No, because I don’t agree what they’re doing is a vigorous defense. What they’re saying is that the law ought to be changed.

I’m not sure how you missed that.

That’s not so much using a grey area as trying to find one, but it’s not an argument that “the law is wrong” out of the blue. Nitpick, though, and not really one I find all that important, even.

I don’t. It’s dumb as shit: there’s lots of areas where we have an age of responsibility that’s out of perfect synchronicity, because there’s no particular reason to have them in synchronicity. To sanction a twelve year old committing an offense against others but to also say an adult fucking that twelve year old is committing statutory rape and the behavior of the twelve year old doesn’t enter into it is completely logical.

any attorney not at least having a go at it if it might work to his client’s advantage is, IMO, severely unethical and should be disbarred if he even remotely makes a habit of taking cases he seemingly cannot, in good faith, defend as vigorously as he ought to. Adversarial system, and whatnot.

So you think that any lawyer should argue that the law itself is wrong, whenever they can? That everyone should aggressively argue that fourteen year olds out to be found complicit in their own rapes?

9 ThomasLite  Sat, Mar 1, 2014 8:00:29am

If it’s the best strategy: sure. That’s exceedingly rare, though: usually you don’t stand a chance in hell. Still, if it’s the best argument you have? go ahead.

Again: adversarial system. it’s a bloody court room, not a legislative assembly.

Also as to your second point: sure, those can be out of sync. that’s a *perfectly* reasonable situation; to argue that they never affect each other though, is bullshit. therefore, it’s worth a shot. doesn’t have to influence, but it *could*. that’s all you need.

And the distinction you’re trying to make off the bat is entirely nonsensical. Arguing that the law is not altogether on point is potentially a part of a vigorous defence. Fuck, your supreme courts would be out of the business of criminal law for a large part if that was not part of a vigorous defence. And yes, I fully agree going after, say, the death penalty for mentally retarded defendants is a hell of a more noble cause than this; still, it is offensive to make that distinction in whether an attorney should be able to argue, rather than in whether his point should be given any merit in a judgment (which is where the smackdown to this bullshit rightfully belongs).

10 Fairly Sure I'm Still Obdicut  Sat, Mar 1, 2014 8:10:47am

re: #9 ThomasLite

If it’s the best strategy: sure.

So you actually think that was the best strategy in this case? And you think that it’s a lawyer’s job to actually argue the law is wrong, not to argue that within the law that their client is innocent, but that the law should be changed?

Again: adversarial system. it’s a bloody court room, not a legislative assembly.

You are the one treating it as a legislative assembly, attempting to change laws.

Arguing that the law is not altogether on point is potentially a part of a vigorous defence. Fuck, your supreme courts would be out of the business of criminal law for a large part if that was not part of a vigorous defence.

Arguments made to the supreme court are on constitutionality, standing, etc. The argument being made here is not of that, at all.

; still, it is offensive to make that distinction in whether an attorney should be able to argue, rather than in whether his point should be given any merit in a judgment (which is where the smackdown to this bullshit rightfully belongs).

I don’t give a shit what you find offensive, you can stop mentioning it. It matters not in the least bit to me.

11 ThomasLite  Sat, Mar 1, 2014 8:23:33am

“Hey actually, that oughta be different” is arguing it ought to be changed - sure, but in a venue where the only effect would be it getting applied differently. Yes, to some point, it can be proper to try. It’s not prohibited, certainly - so if a lawyer thinks it’s the best strategy, he ought to try.

Do I think it was the best strategy? From a cursory glance at the facts, and not being a criminal practitioner by a long shot, it would seem to me that, at least back here, contrition might have worked better than “hey, it’s her fault, too”. Not sure if that would really work with the client, though.

In any case, I defer to the judgment of the lawyer who (1) actually has studied the case and (2) is the one responsible for making the call to a significant degree. Anyway, it doesn’t matter here. His responsibility is towards his client. If you want to argue he should be dragged in front of the ethics board for failing to properly defend his client, feel free. I have no opinion on that matter, here.
If however, he (or his client - they can be such a pain in litigation…) feels this is the best strategy: then it should be open. *That* is what I’m arguing. Not that it objectively was. Neither of us have studied this closely enough, and in any case, I highly doubt we’d even have access to all the facts so as to properly ascertain such a thing. Please don’t move the goalposts there.

point 2: that’s bullshit. Sorry, that argument cannot be made in good faith. I have explicitly, repeatedly, stated that.

3: yes. different reading of the same norm, at a later point in time. You really do get to argue that.

4: Fine. I’ll put it somewhat more formal, then: Anyone who tries to (yet again) further limit that which an attorney is entitled, as well as obliged, to do to further his client’s case is an enemy of any effective system of justice. Sit better with you now?

12 Fairly Sure I'm Still Obdicut  Sat, Mar 1, 2014 8:35:52am

re: #11 ThomasLite

“Hey actually, that oughta be different” is arguing it ought to be changed - sure, but in a venue where the only effect would be it getting applied differently. Yes, to some point, it can be proper to try. It’s not prohibited, certainly - so if a lawyer thinks it’s the best strategy, he ought to try.

I have no clue why you are so cavalier about lawyers arguing that the law is wrong rather than arguing the actual law, but suffice it to say your view of what lawyers should do is not how they actually operate in the US. Arguments against the laws themselves should only be made if the lawyers honestly feel the laws are unjust.

Do I think it was the best strategy? From a cursory glance at the facts, and not being a criminal practitioner by a long shot, it would seem to me that, at least back here, contrition might have worked better than “hey, it’s her fault, too”. Not sure if that would really work with the client, though.

Why the fuck are you talking so much about this if you’ve just given it a cursory glance?

In any case, I defer to the judgment of the lawyer who (1) actually has studied the case and (2) is the one responsible for making the call to a significant degree.

Why do you defer to them? You automatically accept any defense must be a legitimate one simply because it’s offered?

Anyway, it doesn’t matter here. His responsibility is towards his client. If you want to argue he should be dragged in front of the ethics board for failing to properly defend his client, feel free.

Nice idiotic strawman that isn’t close to anything I’ve said at all there, bro.

point 2: that’s bullshit. Sorry, that argument cannot be made in good faith. I have explicitly, repeatedly, stated that.

Totally lost as to even what you’re talking about here.

3: yes. different reading of the same norm, at a later point in time. You really do get to argue that.

On what grounds would the appeal to the Supreme Court be made? Please be clear.

Anyone who tries to (yet again) further limit that which an attorney is entitled, as well as obliged, to do to further his client’s case is an enemy of any effective system of justice. Sit better with you now?

Yeah, you’re calling me an enemy of an effective system of justice because I don’t think people should argue that fourteen year olds are culpable in their own rapes because they can be culpable in other things.

What a goddamn weirdo. I’m not an enemy of justice. Neither of you. Climb down from your hyperbole pole and try acting like a normal human being.

13 ThomasLite  Sat, Mar 1, 2014 8:57:08am

Arguments against the laws themselves should only be made if the lawyers honestly feel the laws are unjust.

No argument should depend on a lawyer’s feelings. Grief, no clue where you’re even going with that.

You really don’t seem to get it. I don’t give a single fuck about the specific case. what I care about is some buffoon arguing that a lawyer should be disbarred for what seems to amount to a vigorous defence of an unsympathetic client with a dog of a case.

Again, if you want to argue the defence was ineffective? be my guest! You were putting “this was the most effective defence” in my mouth where I said “hey, if he felt that was most effective” he should get to bring it: he’s not misrepresenting fact, he’s not misrepresenting statute, he’s not misrepresenting controlling authority; instead, he’s arguing a gap in broader development of the law. I don’t even think it’s a particularly strong point.

” Anyway, it doesn’t matter here. His responsibility is towards his client. If you want to argue he should be dragged in front of the ethics board for failing to properly defend his client, feel free.

Nice idiotic strawman that isn’t close to anything I’ve said at all there, bro.”
Not arguing that you did, mate. What I am saying is that if you want to take issue with him choosing this avenue of defence, that would be the only proper grounds for doing so.

“point 2: that’s bullshit. Sorry, that argument cannot be made in good faith. I have explicitly, repeatedly, stated that.

Totally lost as to even what you’re talking about here.”

Good. I hadn’t a clue where you were pulling the argument from in the first place, so that apparently solves it nicely.

“3: yes. different reading of the same norm, at a later point in time. You really do get to argue that.

On what grounds would the appeal to the Supreme Court be made? Please be clear.”
Where a discrepancy between one specific statute and broader legal/societal development seems to occur? No rational basis would be my first guess.
Hopeless argument to actually get the law changed in this case - but in a hopeless case, you’re sometimes stuck with at least trying a more or less hopeless argument.
And let’s not forget one thing: they’re going with this argument for a sentencing determination; those can consider a sometimes broader range of facts than the question of criminal liability on itself can (example: having a tough childhood is not going to affect whether you get convicted, but it could get you leniency in sentencing. both entirely reasonable).

Hyperbole pole? Keep in mind that you’re defending some asshole who wants to disbar attorneys for trying hard to defend a hugely unsympathetic client. Fuck that, unreservedly.

14 Fairly Sure I'm Still Obdicut  Sat, Mar 1, 2014 9:08:21am

re: #13 ThomasLite

Arguments against the laws themselves should only be made if the lawyers honestly feel the laws are unjust.

No argument should depend on a lawyer’s feelings. Grief, no clue where you’re even going with that.

“Feel” in this case doesn’t mean ‘feelings’, as should be obvious from context. Substitute believe if that’s what it takes for you to grasp this concept.

You really don’t seem to get it. I don’t give a single fuck about the specific case. what I care about is some buffoon arguing that a lawyer should be disbarred for what seems to amount to a vigorous defence of an unsympathetic client with a dog of a case.

I get it, and, as I’ve made repeatedly clear, I don’t agree with you that this is a vigorous defense. I’ve said that straightforwardly repeatedly, and yet you can’t seem to understand it. Again: I do not feel this was just a vigorous defense.

Good. I hadn’t a clue where you were pulling the argument from in the first place, so that apparently solves it nicely.

No, it doesn’t. Explain what you meant.

Actually, never mind. Your argument is sloppy as fuck, you use hyperbole and emotional appeal wildly, and you infuriatingly retreat to the ‘oh, I don’t really know much about the case’ defense. Not worth it.

Laywers should not argue that the law is unjust unless they actually have a credible belief that that laws is unjust. Their specific argument—that the law recognizes that youth can be sexual offenders, therefore youth should be considered for culpability in their own rapes by adults— is thin as parchment and does not work at all. It’s just a non-starter, it runs contrary to all of US youth law.

You haven’t argued your case well, you haven’t argued it convincingly, and you haven’t even really argued a coherent case, you’ve just kind of flopped around screaming about how lawyers ought to be able to—obliged to—do anything for their clients. That is not true, and thank god it isn’t.

15 ThomasLite  Sat, Mar 1, 2014 9:10:53am

Asserting you’re right because of, well, you’re right. Have fun with your circular reasoning there.

16 garhighway  Sat, Mar 1, 2014 7:29:00pm

FWIW, I think Thomas has it right: the lawyer has a duty to put on the best possible defense. That might mean asserting defenses and arguments that are unpopular and/or that he or she does not personally believe are rich in he grander scheme of things. Our system depends on lawyers behaving that way.

17 EPR-radar  Mon, Mar 3, 2014 4:59:23pm

re: #16 garhighway

FWIW, I think Thomas has it right: the lawyer has a duty to put on the best possible defense. That might mean asserting defenses and arguments that are unpopular and/or that he or she does not personally believe are rich in he grander scheme of things. Our system depends on lawyers behaving that way.

There are limits to this that do need to be addressed, IMO. Direct appeals to actual or assumed prejudices of the jury are very questionable, even in an adversarial system. For example, I think a lawyer that raises the “gay panic” defense for a client accused of murdering a gay person should face consequences. In fact, court rules forbidding certain kinds of argument might make sense.


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