Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-07T12:34:45.598Z Has data issue: false hasContentIssue false

7 - Criminal defense and the problem of client selection

Published online by Cambridge University Press:  05 October 2014

W. Bradley Wendel
W. Bradley Wendel
Affiliation:
Cornell University, New York
Get access

Summary

How can you represent that person?

Kenneth Murray, a criminal defense attorney in a small town north of Toronto, Ontario, was retained by Paul Bernardo to defend him against charges of kidnapping, rape, and murder. Bernardo had been arrested in connection with several rapes that had occurred elsewhere in Ontario, and the police suspected him of involvement in the murder of two teenaged girls who had disappeared and whose bodies had been found with signs of sexual abuse. The police searched Bernardo’s house and found no incriminating evidence. Subsequently, Bernardo told his lawyer, Murray, that there were cameras placed in the bedroom of his house and that he and his wife had not only tortured, raped, and murdered the two girls, but also had videotaped the acts. (Bernardo’s wife was represented by separate lawyers. Bernardo wanted his lawyer to see the tapes in order to establish his defense that it was his wife, not Bernardo, who had killed the girls.) Murray went to Bernardo’s house and, following Bernardo’s instructions, found the videotapes hidden in a light fixture. Murray brought the tapes back to his office and viewed them. They indeed showed several hours of horrific acts by Bernardo and his wife, including the wife administering a dose of toxic gas to her own sister, which subsequently resulted in her sister’s death.

Type
Chapter
Information
Ethics and Law
An Introduction
 , pp. 131 - 155
Publisher: Cambridge University Press
Print publication year: 2014

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Cooper, Q.C. Austin, “The Ken Murray Case: Defence Counsel’s Dilemma,” Criminal Law Quarterly 47: 41 (2009)Google Scholar
Clemmer, Christopher D., “Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel’s Conflicting Obligations to Clients and the Court,” Osgoode Hall Review of Law and Policy 1: 137–97 (2008)Google Scholar
Woolley, Alice, Understanding Lawyers’ Ethics in Canada (Markham, Ont.: LexisNexis 2011), p. 46–52Google Scholar
R v. Ulcay & Toygun [2007]
Ross, Stan, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Sydney: Butterworths 1995), pp. 143–54Google Scholar
Webb, Duncan, Ethics: Professional Responsibility and the Lawyer (Wellington: Butterworths 2000), pp. 153–61Google Scholar
Flood, John A., Barristers’ Clerks: The Law’s Middlemen (Manchester: Manchester University Press 1983)Google Scholar
Rondel v. Worsley [1969]
R. v. Paine (1792)
Dare, Tim, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role [Farnham, Surrey: Ashgate 2009], p. 10Google Scholar
Fried, Charles, Op-Ed, “Mr. Stimson and the American Way,” Wall Street Journal (January 16, 2007)Google Scholar
Woolley, Alice et al., Lawyers’ Ethics and Professional Regulation (Markham, Ont.: LexisNexis 2008), pp. 383–94Google Scholar
Smith, Abbe and Freedman, Monroe, How Can You Represent Those People? (New York: Palgrave MacMillan 2013)CrossRefGoogle Scholar
Dershowitz, Alan M., Reasonable Doubts: The Criminal Justice System and the O. J. Simpson Case (New York: Touchstone 1997)Google Scholar
Kunen, James S., “How Can You Defend Those People?”: The Making of a Criminal Lawyer (New York: Random House 1983)Google Scholar
Wishman, Seymour, Confessions of a Criminal Lawyer (New York: Times Books 1981)Google Scholar
Smith, Abbe, “Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things,” Hofstra Law Review 28: 925–61 (2000)Google Scholar
Ogletree, Jr. Charles J., “Beyond Justifications: Seeking Motivations to Sustain Public Defenders,” Harvard Law Review 106: 1239–94 (1993)CrossRefGoogle Scholar
Tigar, Michael E., “Defending,” Texas Law Review 74: 101–110 (1995)Google Scholar
Babcock, Barbara, “Defending the Guilty,” Cleveland State Law Review 32: 175–87 (1983)Google Scholar
Mitchell, John B., “The Ethics of the Criminal Defense Attorney – New Answers to Old Questions,” Stanford Law Review 32: 293–337 (1980)CrossRefGoogle Scholar
Dworkin, Ronald, “Rights as Trumps,” in Waldron, Jeremy, ed., Theories of Rights (Oxford: Oxford University Press 1994)Google Scholar
Luban, David, “Lawyers as Upholders of Human Dignity (When They’re Not Busy Assaulting It),” in Legal Ethics and Human Dignity (Cambridge: Cambridge University Press 2007), pp. 71–72CrossRefGoogle Scholar
Hazard, Jr. Geoffrey C., “Quis Custodiet Ipsos Custodes?,” Yale Law Journal 95: 1523–35 (1986) (book review), p. 1529CrossRefGoogle Scholar
Harr, Jonathan, A Civil Action (New York: Random House 1995), p. 340Google Scholar
Joseph, Lawrence, Lawyerland: What Lawyers Talk About when They Talk about Law (New York: Farrar, Straus & Giroux 1997), p. 127Google Scholar
Hazard, Geoffrey C. and Remus, Dana A., “Advocacy Revalued,” University of Pennsylvania Law Review 159: 751–81 (2011)Google Scholar
Gilovich, Thomas and Griffin, Dale W., “Judgment and Decision Making,” in Gilovich, Thomas, Keltner, Dacher, and Nisbett, Richard E., eds., in Social Psychology (New York: Norton, 2d edn., 2011), pp. 246–58Google Scholar
Tigar, Michael E., “Defending,” Texas Law Review 74: 101–110 (1995), p. 104Google Scholar
State v. McDowell, 681 N.W.2d 500 (Wis. 2004)
Clermont, Kevin M., Standards of Decision in Law (Durham, N.C.: Carolina Academic Press 2013), pp. 29–30Google Scholar
Cochran, Jr. Johnnie L., “How Can You Defend Those People?,” Loyola of Los Angeles Law Review 30: 39–43 (1996), p. 42Google Scholar
Burnett, D. Graham, A Trial by Jury (New York: Knopf 2001), pp. 160–61Google Scholar
Cole, David, No Equal Justice: Race and Class in the American Criminal Justice System (New York: New Press 1999)Google Scholar
Fried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” Yale Law Journal 85: 1060–89 (1976), p. 1070CrossRefGoogle Scholar
Shaffer, Thomas L., On Being a Christian and a Lawyer (Provo, Utah: Brigham Young University Press 1981), pp. 75–76Google Scholar
Tigar, Michael E., “Setting the Record Straight on the Defense of John Demjanjuk,” Legal Times (Sept. 6, 1993)Google Scholar
Freedman, Monroe and Smith, Abbe, Understanding Lawyers’ Ethics (New Providence, N.J.: LexisNexis, 4th edn., 2010), Appendix A, p. 371Google Scholar
Freedman, Monroe H., “The Lawyer’s Moral Obligation of Justification,” Texas Law Review 74: 111–118 (1995)Google Scholar
Harden, Blaine and Torry, Saundra, “N.Y. Law Firm to Advise Swiss Bank Accused of Laundering Nazi Loot,” Washington Post (Feb. 28, 1997), p. A3Google Scholar
In re Holocaust Victims Assets Litigation, 319 F.Supp. 2d 301, 303 (E.D.N.Y. 2004)
Parker, Christine and Evans, Adrian, “Case Study 2.1: The Nazi Gold,” in Inside Lawyers’ Ethics (Cambridge: Cambridge University Press 2007), pp. 37–39CrossRefGoogle Scholar
Bazyler, Michael J., “Gray Zones of Holocaust Restitution: American Justice and Holocaust Morality,” in Petropoulos, Jonathan and Roth, John K. eds., Gray Zones: Ambiguity and Compromise in the Holocaust and Its Aftermath (New York: Berghan Books 2005), p. 339Google Scholar
Goldman, John J., “Venerable Firm in Spotlight for Holocaust Assets Case Role,” Los Angeles Times (Apr. 3, 1997)Google Scholar
In re Holocaust Victims Assets Litigation, 319 F.Supp. 2d 301 (E.D.N.Y. 2004)
Bok, Sissela, Lying: Moral Choice in Public and Private Life (New York: Pantheon Books 1978), p. 13Google Scholar
Mitchell, John B., “Reasonable Doubts Are Where You Find Them,” Georgetown Journal of Legal Ethics 1: 339–61 (1987)Google Scholar
Amsterdam, Anthony and Bruner, Jerome, Minding the Law (Cambridge, Mass.: Harvard University Press 2000), p. 111–42Google Scholar
Pennington, Nancy and Hastie, Reid, “A Cognitive Theory of Juror Decision Making: The Story Model,” Cardozo Law Review 13: 519–57 (1991)Google Scholar
White, James Boyd, “Making Sense of What We Do: The Criminal Law as a System of Meaning,” in Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press 1985), pp. 207–09Google Scholar
Freedman, Monroe H., Lawyers’ Ethics in an Adversary System (Indianapolis: Bobbs-Merrill 1975), pp. 43–45Google Scholar
Smith, Abbe. See Understanding Lawyers’ Ethics (New Providence, N.J.: LexisNexis, 4th edn., 2010) § 7.12, pp. 207–08Google Scholar
Luban, David, Lawyers and Justice (Princeton: Princeton University Press 1988), p. 151Google Scholar
Kruse, Katherine R., “The Human Dignity of Clients,” Cornell Law Review 93: 1343–64 (2008), p. 1346Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×