Holder Sees Way to Curb Bans on Gay Marriage: Attorneys should not defend them.

While the NY Times reports Holder Sees Way to Curb Bans on Gay Marriage: Attorneys should not defend them,  Marquel, TPV’s Crack Times correspondent suggests same treatment whenever attorneys don’t like their clients.
In a statement prescribing a path loaded with ethical and practical potholes (yes, potholes!), Attorney General Holder has suggested that state attorneys general should just walk away from these cases, leaving their clients in the lurch.

Marquel interviewed former Brooklyn district attorney Charles Hynes to see what he thought about it.

“Stupendous idea for the criminal justice system,” he said. “There’s no sense defending a wrong idea nor a guilty man. If a defense lawyer thinks his client is dirty and knows he’s guilty, he should certainly walk away. Criminal justice would finally be as much about justice as about criminals.”

“But isn’t the adversary system based on a contest between two competent lawyers testing their cases before a neutral court?” Marquel asked. “Without a lawyer you’ve lost before you start.”

“Not necessarily, there’s a lot of cases that turn on testimony, and you can get favorable testimony in any case,” said the former DA who is accused of using fabricated testimony in dozens of cases, often with identical witnesses and rehearsed statements, over several decades.

“But,” I sputtered, “without a lawyer who would present the testimony?”

“Remember,” he cautioned, “this is only where, as AG Holder says in a more refined way, when two issues are satisfied: the defendant is a sleaze bag and the defendant is guilty. “

“That’s terrible, ” I said, “when would both those be satisfied? Which kind of cases?”

“Off hand I can’t say, But all of my cases were like that. Every last one of them,” he answered. “This idea would have saved money, time, and kept the bad guys in jail.”

“But, But, But,…,” was all I could muster.

So I went to Charles Peters, who has defended scores of accused criminals through a long and successful career. I asked him what he thought.

“Great,” he said, “According to Holder it’s prosecutors who should drop these cases. That would have been a gift of justice to my clients, the vast majority of whom were prosecuted for political reasons. I agree that two factors must be satisfied. The prosecution should smack of ill will instead of justice, and the defendant should appear innocent to a reasonable observer. To prosecute under those conditions is a miscarriage of justice.”

“But isn’t a prosecutor already supposed to decline to prosecute when he doesn’t think the defendant is guilty?” I asked.

“In theory yes. But they think everyone’s guilty, including their mothers, fathers, sisters, and brothers.” He asserted.

“What?” I screeched. “Guilty of what?”

“Not worshipping them, to begin with.”

“But you still like this idea?” I asked.

“If properly applied. I said it more politely but I could use Hynes’ language. If the case is a sleaze bag, that’s usually the cops, and the defendant is innocent, walk away Mr. prosecutor.”

I’m usually convinced by my own interviews in one way or another, But this one made me nervous. Attorneys walking away. Clients in the lurch. What happened to the right to a lawyer? I went to Yale University and spoke to Prof. Irving Stanley, an expert on legal ethics. What did he think?

“I’ve never heard this doctrine expounded so forcefully. Let me just address Holder’s suggestion. If a state attorney General walks away, the court will usually appoint counsel for that case. Not only that, but they won’t just choose any lawyer off the pro bono list. They’ll usually choose the best lawyers–inevitably better than the prosecutor or attorney General who is always a hack and inevitably as competent as my dog Rover. Holder’s suggestion that this would remove the politics or policies from these cases is just backward. It’s the politics and policies that would force these lawyers’ appointments. Thus it would be even more, not less political. You know I get interviewed so rarely but my dog Rover could actually do better than Holder in any case I can imagine. Especially a jury trial. Cute dog ” He swallowed several times, looked uncomfortable, and went back to reading his law reports.

I thought I should talk to Holder and went to DC. There, I met the attorney General of the United States. He was regal. I asked him about the controversy, clients without lawyers, lawyers walking away from sleaze bags, and appointed counsel.

“Listen, you need some perspective here,” he said, “I never suggested this be done by prosecutors in criminal cases nor by defendant lawyers. I spoke only of gay marriage.”

“So it wouldn’t apply anywhere else?” I asked relieved, but strangely more nervous.

“I can’t say nowhere else, but the circumstances would be rare and uncommon” he answered. He was chuckling as if I were an idiot.

“But in law wouldn’t you be able to say when those circumstances demand this extreme doctrine?” I asked.

“Certainly, I would,” he answered.

“Sooo…, ” I hesitated, “when?”

“As you say, ” he repeated, “I would be able to say when it applies.”

“And nobody else?” I asked.

“I’m the attorney General,” he said, still continually chuckling, “if there were a different one, he or she might be able to say. I suppose the president maybe, I haven’t spoken to him about this….”

“Who have you spoken to?” I asked.

“Well I’m a Columbia man, but I tried contacting a Yale professor, Professor Stanley. Very famous, very famous.” Said Holder.

“What did he say?” Asked I.

“He was really busy, really busy, really famous, really famous.” Averred Holder. “But I did have a few moments with Rover. Made everything Crystal clear. Cute dog.”

I was going to continue the interview and ask Holder how he did in law school. But I thought I knew the answer so I took the Acela back home.

You may follow Marquel on Twitter @MarquelatTPV.