THE LAW FOR WRITERS – WHAT’S WRONG WITH HTGAWM?

A little while ago I posted an article on the law for writers.  It got lonnnnnng, so long that people told me it was too difficult to read, too much info in too little space, and since it was just a list, the bullet points they got didn’t really make sense.  So I’m going more in depth on some major points and taking them one at a time.  This is, as always, not legal advice and you should not take it as such.  It is writing advice and you should take it as that 🙂

First up, the show that kicked off my rant on how media gets things sooooo wrong it’s painful: The TV Show ‘How to Get Away with Murder.’

The title says it all and I just cringe every time I hear it.  Where do I even begin?

Okay, the title actually is a great place to start.  Defense Attorneys are not there to help clients “get away with” anything. They get in trouble if they lie to the court.  We have Rules of Professional Responsibility.  Now, these obviously vary by state, but most (if not all) states go off of the ABA Model Rules, so most states have basically the same rules.  There’s an ethical dilemma unique to criminal defense attorneys that comes from the duel roles of attorneys.  Yes, we’re advocates for clients, but we’re also officers of the court.  So there’s the 6th Amendment that says the defendant gets to go on the stand if he wishes, there’s rules about attorney client confidentiality, and then there’s rules about the lawyer not be allowed to lie to the court.  These clash.

Rule 3.3 of the ABA Model Code is Candor Towards the Tribunal.  “(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

Lawyers are not allowed to lie to the court, nor are they allowed to put someone on the stand whom they know is going to lie, because that’s perjury.  They are also not allowed to present false evidence under Rule 3.3(a)3.

I know what you’re thinking, “Wait, wait, wait, but that’s what criminal defense attorneys do.  They make up a story to get the jury to that reasonable doubt thing, and the best ones are great liars.”

Um, not exactly.

When the attorney is in the position of the defendant wanting to lie on the stand and/or offer false evidence, first, the attorney can’t do it if the attorney knows it’s a lie.  Attorneys may do this by telling the client they want to know the facts, just not if the client actually committed the crime, that way they don’t technically know if it’s a lie or not.  The attorney is supposed to try to talk the client out of giving a false statement if they do know the client will lie, and then the rules between states differ.  A lot of states say the attorney can put the defendant on the stand and then let the defendant give his narrative, but not really question the defendant on the parts the lawyer knows are not true.

So, the rules envision at least that the client will come up with the story and the lawyer will either technically not know it’s a lie or will know and just let the client say it on the stand without participating in the lie because the client has a 6th amendment right to take the stand if they so wish (another little technicality, the 6th amendment does not give a defendant the right to lie on the stand, which is why the government can change someone with perjury, if you have the right to do something then the government can’t charge you for it, which is what makes it a right).  Or the attorney will get the facts from the client, not ask if the client did the actual crime, and just present the true facts with the innocent explanation.  How they would do this without actually lying is beyond me.

Now, just because these are the rules does not mean lawyers won’t break them and it certainly doesn’t mean the lawyer will get caught.  It’s very difficult to prove what the lawyer knew when.  So attorneys might actually come up with stories and false evidence and lie to the courts in real life and just not get caught.  You know, “Hey, my client told me his friend drove him to his broken down car and he was waiting there for a tow after he’d been drinking, he certainly wasn’t driving the car drunk when it broke down.”  Most clients aren’t that smart.

In real life, defense attorneys are there to make sure their client gets a fair trial.  A defense attorney is there to protect a person’s rights, to make sure they aren’t being steamrolled by the government, to make sure there’s someone on each side of the aisle because we have an adversarial system.  They walk a very fine line between being a zealous advocate and an officer of the court.  And I’m sure most of them can’t manage it perfectly on every single case.  But they still have to at least try and, at least to avoid getting caught, appear to be managing it.

Which gets me to HTGAWM.  You want to know a real good way to tell the professional ethics board of your state that you are actively coming up with lies for your clients and presenting those lies in court?

Teach a fucking class on it!

Not only does the professor in that show break that rule, she also tells her class she does and is showing them how to do it, too.  And she’s breaching confidentiality by telling the students all about the case.

On top of that is the fundamentally wrong way they structure the law school.  They have a professor teaching a class in the practical application of law when the students are 1Ls, as in first year law students.  You can’t teach someone how to apply the law until they know it in the first place!  Need I add, duh.

No really, think about that one.  She is teaching students to come up with stories to explain away crimes when they don’t even know what those crimes are.  Do you know the elements of burglary?  I didn’t before 1L year.  I didn’t even know crimes had things called elements.

How are you expected to explain that the client is not guilty of burglary because he did not enter the house with the intent to commit a crime inside, if you don’t even know that intent to commit a crime inside is one of the elements of burglary?  No, really, I want to know.

This one really bugs me because they could have still had the unethical professor doing this class, but had it be to a bunch of 2Ls or 3Ls, because at least then they’d know the law they were applying.

1Ls have set classes that every ABA accredited law school teaches: Torts, Contracts, Criminal, Property, Civil Procedure, and Legal Research and Writing.  They also do Constitutional Law but I’ve been told that’s recently changed so it no longer must be taken the first year.  Criminal encompasses so much more than just the homicide crimes (another side note, homicide and murder are not the same thing), so the fact that she teaches a class just on murder as their criminal law class is bullshit for that reason, too.

Wow, that ended up so much longer than I planned.  The rant pulled me in, what can I say.  I hope you understand a bit more the murky waters criminal defense attorneys swim in, not because they make them murky, but because they have clashing responsibilities that do.

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6 thoughts on “THE LAW FOR WRITERS – WHAT’S WRONG WITH HTGAWM?

  1. “…so the fact that she teaches a class just on murder as their criminal law class is bullshit for that reason, too.”

    Um, yeah, you’d think that, but that’s exactly how my Criminal Law class went. Prof. Art LeFrancois, Oklahoma City University.

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    1. What!!! I stand corrected. Though I will still argue that is a bullshit way to teach what is supposed to be a general beginners course. What did she do, just analyze the different types of homicide and mens rea all semester?

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      1. He, and everybody else with whom I’ve spoken has thought it odd as well, but we went over it in depth. Start with the elements of murder 1, be able to distinguish from murder 2, discussion of intent, recklessness, negligence, and genuine accident to distinguish from manslaughter, defenses (necessity, etc.), the difference between justifiable and excusable, etc. A little bit on the crimes that can justify lethal force in defense (“BARRKS:” burglary, arson, rape, robbery, kidnapping, and forcible sodomy). In theory, if you can work the whole process on one class of crime, the only difference with other classes is the details of the elements. Teaching the skill, not the crime.

        Some time on the felony murder rule, and his comment that there’s no such thing as the “misdemeanor murder rule,” which prompted my reply that there is: “it’s where the value of the decedent does not exceed $20.”

        Men’s tea? You appear to stand autocorrected as well. 😉 For those not aware, she meant mens rea, and yes, we spent a fair bit of time on that.

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  2. Wow, okay, I fixed the Men’s tea. *Spanks auto correct*

    Now, back to the argument. Teaching the idea and the skills through the lens of one crime is still not a good way to teach, at least according to my law school education. The point of law school is to get to you understand the law and “think like a lawyer,” and part of that in criminal law is the ability to look at your client’s situation, or the defendant’s if you’re the prosecutor, and assess what he could possibly be charged with, what the potential defenses are, and what the mental elements required are.

    If you don’t get at least a general base for understanding those crimes, how are you supposed to see all the angles and defend against them as a practicing attorney?

    Now, you could argue that you learn crimes’ elements for the bar and on the job while you’re in practice, and we don’t memorize things like elements anyway, we just look them up. However, those skills you learn in law school are easier to develop when you have a good base, meaning that lack of knowledge of how to see all the angles in a situation and to analyze what the crimes are could mean you do not do as well in Criminal Procedure classes or in practical classes such as clinics.

    Also, part of our class was the discussion of the theory behind criminal law. Why are things illegal? What theory of punishment do we go off of in this country and how did those change over time? If you don’t have a good theoretical base for what you do, something to show you how to think about law in the greater social context, then you also don’t have a good base for arguing what should or should not be illegal when something like drug use comes up in the public forum.

    I’m obviously not saying you’re wrong in stating that’s how your professor taught. Because you’d know better than me what was taught there. I’m saying it’s a bad way to teach a beginners, intro, or 1L course.

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    1. You’ll find no argument here about his teaching method. And we did spend some time on theories of punishment; utilitarianism, deterrence, retributionism, etc. But the bulk of it was using homicide as an example for how to read statutes.

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