Men get eight life sentences plus 60 years for raping paramedics...

Riaan-Combrink

Alan Ratcliffe wrote
Psean wrote Still, what gets me is that the lawyer is pretty much admitting that the victims were raped.
Once a guilty verdict has been passed down, the defendant is guilty in the eyes of the law - the lawyer has to take it as fact, whether his client continues to maintain their innocence or not. IINM, the lawyer would be censured by the court if he tried to maintain the stance of innocence as this would not be in his client's best interest.
[EDIT - as per Bob...]

That's correct.

X-rated Bob wrote It's exactly what a defence lawyer is supposed to do - minimise the impact on her/his clients. It doesn't mean that that lawyer is condoning what happened. That lawyers job was to present the clients as innocent, to defend them to the best of his/her abilities and then, if a guilty verdict is passed down, to try to minimise the sentence.

A little known fact is that in the SA system (as in that of the UK), a lawyer may not put it to the court or any witness that his client is innocent (i.e. wrongly accused) if he has knowledge that the client indeed committed the crime. He must, of course (as you point out) put forth the most vigorous defence he can. In such a case, that would consist of testing the state's evidence (i.e. observations and credibility of witnesses, merits and demerits of evidence and whether evidence meets burden of proof). You may, eg, put it to a witness that he was probably unable to identify the accused due to poor light, but not that the accused did not assault him (if you know the accused did). These are ethical rules of the game, and the judge/magistrate and prosecutor will both understand the "shorthand" of the manner in which the lawyer cross-examines witnesses, argues on the merits, etc. I cannot speak for all, but any professional lawyer who values his reputation abides by this ethical injunction. It remains his job to test the state's evidence by cross-examination and to argue that it fails to meet the standard of beyond a reasonable doubt (if that is the case). The lawyer's job in the pre-finding phase is thus to convince the court that the state failed to prove his client's guilt, not that his client is innocent. From this derives the dichotomy of "not guilty" (as opposed to "innocent") and "guilty". And XRB is entirely correct that the lawyer's part in this process is exactly to ensure that the prosecutor does his job right and proves the case beyond a reasonable doubt. If not, and it becomes too easy to convict guilty people, the likelihood is that a number of really innocent people will be convicted due to the lowered standard.

Bob-Dubery

Riaan C wrote A little known fact is that in the SA system (as in that of the UK), a lawyer may not put it to the court or any witness that his client is innocent (i.e. wrongly accused) if he has knowledge that the client indeed committed the crime.

This, presumably, is easily dealt with by telling the client that you do not wish to know if he did it or not. However, I suppose it may still occur that as the trial unfolds, or as the lawyer prepares his case, it may become apparent that the client must have done it.

Bob-Dubery

Tokai SA wrote
X-rated Bob wrote
Psean wrote Reading the defense lawyer's claim that
the women suffered no physical injuries when they were raped,
in an attempt to reduce the sentence, scared the crap out of me - absolute madness.
they are up against all the resources of the state.
Not very nice resources. ?
http://www.bdlive.co.za/articles/2011/04/08/court-conditions-repel-judge-candidates

That's not what I meant. The state has a police force and forensic facilities at it's command. It has hugely more facilities with which to gather evidence that suits its case. And, of course, the state has the power to imprison or, in some jurisdictions, to impose the capital sentence.

This is why there are different standards of proof in criminal and civil cases in many legal systems. If you and I decide to slug it out via a civil court case it's a more even fight, and there's no possibility of incarceration.

Bob-Dubery

Riaan C wrote It remains his job to test the state's evidence by cross-examination and to argue that it fails to meet the standard of beyond a reasonable doubt (if that is the case). The lawyer's job in the pre-finding phase is thus to convince the court that the state failed to prove his client's guilt, not that his client is innocent. From this derives the dichotomy of "not guilty" (as opposed to "innocent") and "guilty". And XRB is entirely correct that the lawyer's part in this process is exactly to ensure that the prosecutor does his job right and proves the case beyond a reasonable doubt. If not, and it becomes too easy to convict guilty people, the likelihood is that a number of really innocent people will be convicted due to the lowered standard.

This is very interesting. A defence lawyer then is really serving too clients. One is the person on trial, the other is the integrity of the judicial system.

Riaan-Combrink

X-rated Bob wrote
Riaan C wrote A little known fact is that in the SA system (as in that of the UK), a lawyer may not put it to the court or any witness that his client is innocent (i.e. wrongly accused) if he has knowledge that the client indeed committed the crime.
This, presumably, is easily dealt with by telling the client that you do not wish to know if he did it or not. However, I suppose it may still occur that as the trial unfolds, or as the lawyer prepares his case, it may become apparent that the client must have done it.

The spanner in the works of not getting all the facts prior to the trial is that the lawyer is by law obligated to put his client's defence to the relevant witnesses. I.e. if witness A is going to testify that he saw the client at the crime scene (which you'll know from the witness' police statement in the docket), you have to dispute it - or the court accepts it as proven. So you'll have to cross this hurdle, and the only way to do it is to know whether client was at scene or not. If he says he was, but for a different reason, you offer that. If he denies being there and you dont put that to the witness, accused can't testify to that effect in court at later stage. If he says to you he was at scene, and he assaulted the witness there, you have the ethical dilemma. In such case the ethical lawyer will simply test (and attempt to cast doubt onthe witnesses' ability to identify his client as the person who indeed assaulted him (eg was witness drunk, reason to falsely implicate accused, visibility conditions, etc etcv). Becomes a very tricky game, but one that ethical lawyers are well versed in (and is a common matrix understood by all parties involved in the trial).

X-rated Bob wrote
Riaan C wrote It remains his job to test the state's evidence by cross-examination and to argue that it fails to meet the standard of beyond a reasonable doubt (if that is the case). The lawyer's job in the pre-finding phase is thus to convince the court that the state failed to prove his client's guilt, not that his client is innocent. From this derives the dichotomy of "not guilty" (as opposed to "innocent") and "guilty". And XRB is entirely correct that the lawyer's part in this process is exactly to ensure that the prosecutor does his job right and proves the case beyond a reasonable doubt. If not, and it becomes too easy to convict guilty people, the likelihood is that a number of really innocent people will be convicted due to the lowered standard.
This is very interesting. A defence lawyer then is really serving too clients. One is the person on trial, the other is the integrity of the judicial system.

Entirely correct, Bob. This is indeed the only basis upon which lawyers can justify their participation in trials of serial killers, rapists, etc. It is upholding the duty on the state to discharge its onus in every single case to ensure that the system functions sufficiently well to ensure the correct outcome in most cases. As you said, that system is not perfect, but designed to ensure that only compelling evidence results in conviction. I had the displeasure in my early days of representing a number of accused in rape cases (which our firm took on as legal aid matters). Not once did I re-traumatise a victim by telling her she's lying if the client had admitted in consultation that he committed the crime. But I ensured that the prosecutor (who represents not only society at large but also the specific victim) took his duty seriosly and brought a proper case to court. Too often shoddy police investigations are exacerbated by second-rate going-through-the-motions prosecutors - and THAT is where the disservice to the victim lies - not at the door of the lawyer representing the accused. The lawyer is thus the foil that ensures that the criminal justice system operates properly - and hopefully forces police and prosecutors to take their obligation to the victim and society at large seriously by making their job as tough as possible (within the bounds imposed by law and ethics). So two clients indeed.

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