How Attorneys Can Represent Their Guilty As Charged Clients In Good Conscience by Keyana Jones

As an aspiring criminal defense attorney, the moral dilemmas that I will inevitably face trouble me. Especially in the arena of litigation, it seems to me all attorneys experience some degree of moral conflict at one point or another regardless of whether the trial involves a criminal or civil matter. And so the ultimate question is how does a criminal defense attorney in good conscience represent the guilty? And by the same token, how does a civil attorney in good conscience represent the wrong?

Like every tough question, there is no bright line answer. However, after given these questions much thought and reading what other people have to say about this issue, I believe litigators can align their professional duties with their moral responsibilities by (1) Seeking justice and (2) Thinking creatively.

First, an attorney’s ultimate goal must be to seek justice and not to simply win. I realize this is easier said than done. In an article published in an ABA journal entitled, “Litigation,” Martin Siegel (a seasoned litigator) writes “[S]omewhere along the line, the craft of lawyering inevitably overwhelms the justice of it. Clients pay our bills, not abstractions like truth or justice, and you might have noticed that client’s like to win.” But as attorneys we are called to be zealous advocates, not “hired guns” who win at all costs. This calling applies whether we personally think the client is guilty, innocent, right or wrong.

It’s my belief that you can seek justice and be a zealous advocate simultaneously even when you believe your client is in the wrong because justice is a multifaceted concept. Justice encompasses not only traditional notions of morality and fairness but due process. As far as morality and fairness are concerned, even the guilty is entitled to a fair outcome. It’s the attorney’s duty to present their client’s side of the story to help facilitate a fair outcome. In terms of due process, this entails constitutional protections. And so, if for example a case is won on a constitutional technicality, such as evidence being inadmissible because it is fruit of the poisonous tree, that too is justice. My point is justice is complex and it does not come in one-size-fits-all. And so even if you are certain your client is guilty or was in the wrong, in some aspects of the case justice may be on your client’s side and it’s an attorney’s duty to bring those details to light.

Second, even when our clients are guilty as charged, as zealous advocates we must think outside the box for solutions. In the criminal context, the fact is the majority of people charged with a crime are probably guilty. In an online article, a criminal defense attorney wrote he could not recall the last time he represented someone who he thought was innocent. In addition, a personal friend once told me “most people I represent either did it or had something to do with it.” When faced with these types of situations I think it’s important for lawyers to seek creative solutions. For example, in the criminal context design unique plea bargains that encompass not only jail time, but rehabilitation, community service, counseling or avenues to express remorse. In the civil context, in addition to money settlements consider whether there are other compromises or actions/ inactions parties can do to solve the problem. As Steven Covey, author of The Seven Habits of Highly Effective People said, don’t think win-loose think win-win.

I have not begun practicing law yet. And so it’s fair to say this article is written from a somewhat naïve and idealistic perspective. However, I believe it is important for “rookie” attorneys to adjust their moral compass at the outset of their career as opposed to when we are in the trenches of a moral dilemma.

Civil Gang Injunctions: A Partial Solution to Gang Related Violence

Today, gang violence plagues many urban communities around the United States. Some communities are so impacted by gangs that people fear for their life and the safety of their children. At its worst gang violence results in the death of innocent bystanders and young ethnic boys who are gang members themselves.

So as gangs continue to reek havoc in their communities, the age old question is what is the solution? Recently, a method called a Civil Gang Injunction was instituted to inhibit gang violence. A gang injunction is a Civil Court Order issued against an actual gang (as if it were a formal corporation) to cease and desist nuisance activities, that are precursors to gang violence. This article is going to examine Civil Gang Injunctions issued by the Los Angeles City Attorney’s Office and address potential concerns presented by Gang Injunctions.

Implementing a Civil Gang Injunction requires a lot of time and effort by both the Los Angeles City Attorney and the Los Angeles Police Department (LAPD). In the city of Los Angeles, the process of issuing a Gang Injunction is essentially a four-step process. First, officials determine whether a target gang is a “suitable candidate for a gang injunction.” To qualify, a gang must constitute a public nuisance and the nuisance must be continuous and ongoing. Several additional factors are evaluated as well including: whether the gang activities are confined to a particular area, whether the gang had identifiable members and whether there are sufficient records of the gang’s displays of public nuisance.

Second, a problem zone is identified. In creating this “safety zone” convictions, arrests and other gang related incidents are used to map out where a particular gang injunction will be enforced. As such, the injunction only applies in that limited area.

Third, the gang injunction must be approved by the court. Civil Gang Injunctions commonly include the following provisions: Do not associate with any known gang member, no intimidation, no firearms, no drugs, no trespassing and obey curfew. The final step of implementing a Civil Gang Injunction is individual members of the gang are notified about the injunction. If a gang member violates the injunction he/ she may be arrested for violating a court order and face criminal misdemeanor charges.

Gang Injunctions are brilliant in that they seek to inhibit gang violence at the nuisance level before more serious crimes such as murder are committed. The injunction “gives police officers a tool to arrest gang members for conduct that harms the community before it develops into dangerous or violent crime.” And so, although Gang Injunctions do not target the root of why people join gangs they have the potential of preventing the most damaging side effects of gangs.

However, these gang injunctions do not come without a list of potential concerns. First, the “Do Not Associate” provision prohibits gang members from “standing, sitting, walking, gathering or appearing anywhere in public view” with another known gang member. Of course this provision is limited to the safety zone but in effect the provision criminalizes routine behavior. Further, this provision prohibits family members, who are often members of the same gang, from associating with one another as well. Believe it or not, there is a constitutional right to associate. However, the right is limited to association based on “intrinsic or intimate value” and a court ruled the right does not extend to gang members who “join[ ] with others for the purpose of depriving third parties of their lawful rights.”

Another concern about gang injunctions is the notification process. I attended a community training session on Civil Gang Injunctions offered by the Los Angeles City Attorney’s Office and one issue that came up was how the gang was put on notice of the injunction. Issuing a hand delivered subpoena to gang members, which informs them of the gang injunction is not always possible. As such, gang members may be put on notice by posting the court order around the safety zone. The court order includes the name of the gang, the names of some of its prominent members and sometimes pictures of the gang members. The problem with this technique is publicly displaying a gang members name and picture has the potential of creating additional gang violence.

To date, law enforcement is pleased with the success of Civil Gang Injunctions. However, it is important to continue to evaluate these injunctions to ensure they are implemented fairly and accurately.

Introducing Guest Blawger, Keyana Jones

I am very pleased to announce Keyana Jones will be blawgging here for the next month. Keyana is the first of this site's Authors to focus on Criminal Law, so I really am eager to see what she chooses to discuss.

Keyana is currently competing for criminal law clerkships in California, but previously has worked with both the Los Angeles District Attorney's Office and the San Diego Public Defender's Office. Apart from the research and writing required by her work, she has also argued before the courts, and in fact has second-chaired two jury trials.

Keyana is a high honors graduate of the University of California at Irvine, and earned her law degree at the Pepperdine University School of Law. Keyana has written throughout her academic career, acting as Editor-in-Chief of the African Student Union's Newsletter while an undergrad, and sitting on the Journal of Business, Entrepreneurship and the Law while a law student.

Welcome Keyana! You have intimated an active interest in blawgging, so am really happy you could join us here as an Author. Have fun!