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 Post subject: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 10:12 am 
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St Thomas says in ST II-ii q 71 a 3

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Quote:
It is unlawful to cooperate in an evil deed, by counseling, helping, or in any way consenting, . . . Now it is evident that an advocate provides both assistance and counsel to the party for whom he pleads. Wherefore, if knowingly he defends an unjust cause, without doubt he sins grievously, and is bound to restitution of the loss unjustly incurred by the other party by reason of the assistance he has provided. If, however, he defends an unjust cause unknowingly, thinking it just, he is to be excused according to the measure in which ignorance is excusable.


I do not know what kind of legal system St Thomas Aquinas has in mind (I assume something more or less akin to Roman law), but in the Common Law system (as used in English Canada) the defending attorney does not need to establish the innocence of the accused. That's already assumed, as it was in Mosaic law.

Thus, de facto, the job of the defending attorney is to ensure that the accused is not punished for any crime the Crown can not establish the guilt of beyond a reasonable doubt by means of evidence acquired constitutionally.

So here's my question:

Does St Thomas' reasoning entail that a defence lawyer who counsels his client to plead "not guilty" sin if it is known to the lawyer that the crime was committed, but it is also known to the lawyer that the Crown can not establish this crime?

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 10:16 am 
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Re: Crown, for any Americans unfamiliar with Canadian law.

In Canada, a criminal case is always "R v Smith" R standing in for "Regina" or "Rex". Criminal Prosecution then is carried out by the Crown, and so the attorney opposite the defence counsel is called the Crown lawyer. This is because the Queen of England is still the head of the Canadian state, so the administration of justice is always acting on her behalf.

I am not sure what the equivalent is in the USA, though I often see "The People of New York" v Smith, or something.

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 10:47 am 
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ForeverFaithful wrote:
Does St Thomas' reasoning entail that a defence lawyer who counsels his client to plead "not guilty" sin if it is known to the lawyer that the crime was committed, but it is also known to the lawyer that the Crown can not establish this crime?

I don't think so.

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 11:15 am 
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Peregrinator wrote:
ForeverFaithful wrote:
Does St Thomas' reasoning entail that a defence lawyer who counsels his client to plead "not guilty" sin if it is known to the lawyer that the crime was committed, but it is also known to the lawyer that the Crown can not establish this crime?

I don't think so.


Okay, when do you think a defending attorney would commit the sin described in the article?

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 12:06 pm 
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I don't know the legalities and such, not being involved in the legal profession, but I thought it was important that the defense attorney not know that his client is guilty. At any rate, I would say that the case St. Thomas has in mind sounds more to me like a mob lawyer than some kind of public defender. The mob lawyer is indeed cooperating with the mob's wrongdoing. The public defender is presumably taking cases involving strangers who are accused of things about which the lawyer has no personal knowledge, and so can operate on a genuine presumption of innocence. But in short, my tendency is to say that yes, you should excuse yourself from the case if you happen to know that the defendant is guilty.

But there is of course also the complication that pleading not guilty isn't the same thing as claiming innocence. It just means you are demanding that the state prove the case against you, as you note. I could have in fact committed a certain crime, be charged and plead not guilty to it, and not be lying, ISTM.

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 3:27 pm 
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gherkin wrote:
I don't know the legalities and such, not being involved in the legal profession, but I thought it was important that the defense attorney not know that his client is guilty. At any rate, I would say that the case St. Thomas has in mind sounds more to me like a mob lawyer than some kind of public defender. The mob lawyer is indeed cooperating with the mob's wrongdoing. The public defender is presumably taking cases involving strangers who are accused of things about which the lawyer has no personal knowledge, and so can operate on a genuine presumption of innocence. But in short, my tendency is to say that yes, you should excuse yourself from the case if you happen to know that the defendant is guilty.

But there is of course also the complication that pleading not guilty isn't the same thing as claiming innocence. It just means you are demanding that the state prove the case against you, as you note. I could have in fact committed a certain crime, be charged and plead not guilty to it, and not be lying, ISTM.


I was told at my school the Law Society of Ontario. at least, is reluctant to take a lawyer off a case "just because" his client informed him he was guilty. That being said, it is ((professionally) unethical for a lawyer to knowingly submit false evident to court. So if a client informs his attorney that he committed the crime, his attorney (at least in Ontario) can not call him to give witness to an albi defence knowing full well the client was in fact at the crime scene.


What I think the difference is is what is the cause at issue. Generally, we use cause as a term for the side of a legal dispute, but perhaps we need to be more specific. Is my cause "my client is innocent!" when I know he's not, or is my cause "the Crown can not send a man to jail with evidence they obtained without a warrant". The latter seems like a just cause, because while the client very well may deserve to go to jail, maintaining the rule of law seems more important than convicting one guy.

But to this latter end, even a mob lawyer needs to ensure that the evidence used to convict mobsters is constitutional (be it the Canadian Charter of Rights and Freedoms, or the American Bill of Rights)

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All that the Father giveth to me shall come to me; and him that cometh to me, I will not cast out.
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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Mon Jan 13, 2020 3:34 pm 
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I believe the latter end is correct.

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Tue Jan 14, 2020 7:56 am 
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I would of course never take the drastic step of agreeing with Father, but I agree with Father. :fyi:

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 Post subject: Re: Sin of the Defending Attorney
PostPosted: Tue Jan 14, 2020 8:03 am 
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:lalala

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