22 August 2003

PLEASE NOTE: This is entirely my opinion and has not been thoroughly researched. I am shooting from the hip here folks. DO NOT MISTAKE THIS FOR LEGAL ADVICE.

ethicalEsq? has noted SW VA Law Blog's post about the Wise county case I previously blogged about here. I've already opined as to the legal charges in my last post so I'll try to limit this one solely to ethics.

I think this article is misleading1. In Virginia, government actors must have a parent present to go forward on a prosecution in court. However, not even a State actor, such as law enforcement, needs permission to question a minor (e.g. Lee Boyd Malvo: 17 years old questioned without any guardian).

There is also what I would characterize as a strong presumption of competency in Virginia for any child 14 years of age; I've represented children with similar intellectual handicaps to the minor in the article and they were found competent under the laws of Virginia.

This is the law as it has evolved in Virginia. I have no delusions that it evolved in this manner in order to be Defense friendly - in fact, in most situations these laws ease the burden on law enforcement and make it almost impossible to keep a minor from facing his day in court.

With all of that said I think that, in Virginia, any minor older than 13 can be talked to by an attorney without the minor's guardian present and there is no legal bar to that interview. This takes a lot of wind out of the sails of any charge of ethical violations. If the Bar really wanted to pursue this I think it would have to shoehorn it in under the catch-all: Rule 8.4 "It is professional misconduct for a lawyer to: (b) Commit a . . . deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." In my opinion that "reflection" would have to be as seen thru the eyes of the Defendant or the judge - not the prosecutor (or else lots of Defense attorneys are going be out of the Bar in quick order). I don't think the Defendant has anything to complain about here and a neutral judge shouldn't either.

Indeed, I think that it would probably be unethical not to talk to THE witness against your client (who is presumed competent) if she is willing to talk to you. I know that if someone were my attorney and she declined to talk to THE witness who was going to be used to hang me it would reflect badly on my trust of that attorney and I think both the client (me) and the judge would be right in questioning the fitness of that attorney.

Does this feel slimy? YES. But so do many things which a Defense attorney should do2. Most of the time this is because of the presumption that if someone is accused it means that the person must be guilty. It makes most any action taken to put forth a true defense for your client appear unclean to the general public. Take the following as examples: "How can he argue that the cocaine in the Defendant's closet was found thru an unconstitutional search and should be excluded?" "How can he stand in front of the jury and accuse the officer of tampering with the evidence?" "How can he question an underage witness without making sure her mother was there?" I daresay that a quick gut check militates against any of these because at a basic level we all believe that people should be punished for their crimes, police are honest, and children should be protected.

But what if we start from the perspective that the Defendant is entitled to a strong defense, is entitled to the same rights as the rest of us, and is innocent? How dare you not argue that a citizen should be protected from officers who forced their way into a house with a warrant to look for a rifle and searched until they found a rock of crack in the pocket of a coat in the closet? How dare you not sharply question the officer when evidence appeared in the Defendant's lunch bag and his mother will testify that she packed it (without any dope in the bag) and handed it to him as he walked out the door where he was immediately snatched by waiting police officers? How dare you not interview a 16 year old - who is presumed competent and is willing to talk to you - without the coercive influences of a parent, social worker, or police officer (who will influence her to stick to the story they have sold to her and will probably stop the interview if the girl starts telling the truth)?

Well, that's my view from the trenches. Will it be a popular view? No. But I think it is the proper one.

1 The article is also short and missing all sorts of information I would like to have to flesh out this discussion. Things like: How could the girl's mother, knowing what is supposed to have happened to her daughter, let her daughter go without supervision for the length of time all this took? Was the girl lured to the house or did she go over voluntarily? If she was lured, did the attorney have foreknowledge? I doubt she was lured because I think that would have resulted in abduction charges rather than obstruction - but I would still like more facts.

2 I say should because I believe the trend is to lower the ethical requirements by changing zealous representation to things such as "reasonable diligence."


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