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A lawyer's obligation when client is guilty

By Cathy Young | September 23, 2002

THE POPULAR SPORT of lawyer-bashing got a huge boost last week when news reports revealed that attorneys for David Westerfield, the convicted killer of 7-year-old Danielle Van Dam, were apparently fully aware of his guilt when they urged the jury to find him not guilty.

According to the San Diego Union Tribune, in February, after Westerfield had been detained as a suspect in Danielle's disappearance, lawyers Steven Feldman and Robert Boyce were negotiating a plea bargain under which he would lead the authorities to the girl's body in exchange for a guarantee that he would not get a death sentence. The deal, it seems, was minutes away from being concluded when it fell through because volunteers found the body with no help from the killer.

Under the law, such plea negotiations cannot be mentioned to the jury. Westerfield's lawyers then went on not only to challenge the prosecution's evidence but to present their alternate theory of the case - that Danielle was murdered by someone who had gained access to the Van Dam home due to the parents' swinging lifestyle.

For a while now, Bill O'Reilly, the combative host of the Fox News show ''The O'Reilly Factor,'' has been on a warpath against defense attorneys who twist the truth when they knowingly defend guilty clients. With the Westerfield case, O'Reilly has hit the mother lode. He is filing an ethics complaint against Feldman and Boyce with the California State Bar, charging that they violated the bar code's prohibition on intentionally misleading the jury.

O'Reilly's railings against wily defense lawyers have sometimes skirted dangerously close to a presumption of guilt, particularly for alleged crimes against children. But in this instance, his indictment - whether or not it will stand up legally - certainly strikes a powerful moral chord.

Our system of justice assigns defense lawyers the task of defending some unsavory people. For the system to work, lawyers must aggressively represent the interests of their clients, challenging the prosecution's case as best they can. The public interest in ensuring that criminals are properly punished and incapacitated cannot be the defense attorney's concern. Otherwise, we risk something akin to the Stalin-era Soviet political courts, in which the ''advocate'' at a show trial would rise to proclaim that he is so repelled by his client's crimes that all he can do is join the prosecution in asking for the death penalty.

Yet, for the system to work, the public must also have confidence in its integrity. In the 1970s and 1980s, the onscreen popularity of vigilantes (''Death Wish'') or rule-breaking cops (''Dirty Harry'') reflected a common perception that the justice system had lost sight of common sense and of the need to protect the innocent. The same attitude led to widespread public support for real-life figures like ''subway vigilante'' Bernhard Goetz, the New Yorker who shot four alleged would-be muggers, or Ellie Nesler, the woman who shot her son's molester in a California courtroom.

Does blatant disregard for the truth undermine the integrity of the justice system? Surely, the answer must be yes. Indeed, the system recognizes this. The defense attorney's obligation to represent the client does not extend to suborning perjury. If you as the defense attorney know that your client committed the crime, you are limited in the kind of defense you can put on. You can't put your client - or an alibi witness - on the stand knowing that he or she is going to lie. And you cannot, many experts say, assert as fact an alternate theory of the crime when you know it to be false.

Of course, lawyers tread the line very carefully. Westerfield's attorneys, for instance, never actually said that someone else killed Danielle Van Dam; they said that someone else was more likely to have done it. They also never said that Westerfield didn't kill her, only that it would have been impossible for him to get into the Van Dam house or to dump the body where it was found.

But fine distinctions like these don't exactly inspire public confidence. A juror who appeared on the O'Reilly show was genuinely shocked by the information that the attorneys knew Westerfield had been prepared to lead the authorities to the body.

O'Reilly's ethics complaint may be a publicity stunt, but if it helps clarify the rules about a defense attorney's duty to the truth, it will do the justice system a world of good. Even lawyers may ultimately benefit if jurors have fewer reasons to mistrust them.