Daredevil: Redemption

Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:

Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?

There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones.  There are a few minor spoilers ahead, but nothing too serious.  For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama.  Almost all of the action occurs in that small town,  Daredevil makes only a few appearances, and there are no other superheroes or supervillains.  The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama.  It’s a pretty good read, and we recommend picking up a copy.

I. Pro Hac Vice

You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama.  Isn’t he from New York?”  It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there.  However, in some cases, an attorney may be given special permission by a court to practice out of state.  This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.

The way this is described in the comic is quite accurate.  The local attorney says:

Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice.  He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias.  Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.

That’s pretty much how it works in the real world.  Local counsel can do more than just sign papers and sit in court, though.  Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff.  But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.

As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is.  If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice.  It wouldn’t matter that he would be advising a client about Alabama law, either.  Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.

II. The Guilty Client and the Not Guilty Plea

As Murdock often does, he asks his (prospective) client whether he committed the crime.  The client says, “Let’s say I am.  You have to defend me even if I say I killed the kid, right?”  Murdock responds:

Wrong.  My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty.  That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.

There are a couple of issues here.  First the good news: Murdock is correct that the confession would be confidential.  Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).

As you probably know, in the United States criminal defendants are presumed innocent until proven guilty.  The plea of “not guilty” is necessary in order to force the state to prove its case.  It’s not a claim of innocence made under oath.  Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example.  As Robert F. Cochran, Jr. explained:

But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.

“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005).  Cochran describes several rationales for this right to lie, including one by Jack Sammons:

[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.

In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty.  Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty.  And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else.  So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.

III. Perjury

Now, what a lawyer can’t do is knowingly assist a client in committing perjury.  This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand.  But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie.  There are a few approaches here:

1. The attorney can withdraw.  This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.

2. The attorney can simply invite the client to give an open-ended narrative.  For example: “Tell us what you remember from that night.”  Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand.  This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.

3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury.  Obviously this is not a very satisfying approach for the attorney or the client.

4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no.   Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either.  This is a controversial position, to say the least.  See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).  It is also universally rejected by ethical codes in the US, but I include it for completeness.

IV. Conclusion

The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses.  The one major error is irrelevant to the plot anyway.  It’s always nice to see a book that gets the legal details right and also tells a good story.

35 responses to “Daredevil: Redemption

  1. Rumpole drew the line at defending someone who said in so many words, “I did it.” (“Rumpole and the Alternative Society”). I do not know enough to say if this is the rule of the bar, or his personal code.

    • But what does “I did it” mean? Does it mean “I committed the crime of which I am accused?” I don’t think most clients are in a position to accurately judge their legal guilt (that’s one reason they hire a lawyer). There are a whole host of reasons why they might not be guilty of the crime of which they are accused, even if they think they are. Or that the state may not be able to prove it.

      Does it mean “I did some action that is likely criminal?” Well, then let the state prove a) that it was criminal and b) just to what degree.

      Even assuming some hypothetical situation in which the lawyer capital-K Knew that the client was legally guilty of precisely that crime of which he or she was accused, there is nothing wrong with demanding one’s legal right to a trial. In the US the Constitution says a person is presumed innocent and has a right to a trial. There’s not an “unless the client or his or her attorney Knows that they are actually guilty” exception.

      Some would say that it’s unethical because it wastes judicial resources on a foregone conclusion. To that I say: then hire more judges and build more courtrooms. An attorney should not sacrifice his or her client’s constitutional rights on the altar of the state’s budget.

      (NB: I’m speaking about US law. I don’t know what the rules are in the UK.)

      • It was made entirely clear in the Rumpole books that the law did not allow him to continue to represent a client who had admitted guilt but was intending to plead not guilty. (I don’t imagine this principle would apply if there was any doubt about whether the admitted actions were in fact criminal, but very few of Rumpole’s cases hinged on questions of law rather than fact.)

        He did not, however, feel under any obligation to *ask* the client whether he or she was guilty. In fact, he more than once advised colleagues not to do so, because “you might get an answer”. 🙂

        He could also continue to represent clients who were intending to plead guilty, in order to argue in mitigation.

        (Of course, I have no idea whether any of this represented the true state of UK law at the time – although the author was a barrister – or whether the law has changed since then.)

  2. Will "scifantasy" Frank

    Puts me in mind of my PR class (Stephen Gillers teaching). Nix v. Whiteside, Anatomy of a Murder, and so on.

    Honestly, and I’m speaking not as a criminal attorney, but…wouldn’t Murdock be kind of stupid to ask the question outright? I thought they went out of their way to not ask, such as the “lecture” from Anatomy, outlining the options (“I didn’t do it,” “it wasn’t murder,” and “I have a justification or excuse”).

    Oh, hey, Google Books to the rescue!

    The Lecture

    • Will "scifantasy" Frank

      (And yes, I admit, this isn’t a question about the legal accuracy so much as the…shall we say…Best Practices accuracy, but still.)

      • As I understand it most criminal defense attorneys don’t ask “did you do it?” directly like that. The thinking is that you should put forward an equally vigorous defense either way, and knowing “the truth” might make it harder to be a zealous advocate, even if only subconsciously.

    • IIRC (and from the movie) Murdock can tell if people are lying, so hearing what the client says could tell him a lot about how the client is going to react.

  3. Melanie Koleini

    I have a question that hasn’t come up in Daredevil (as far as I know). What is the defense lawyer’s responsibility when he knows a fact that makes his client appear guilty but no one is technically lying?

    Let’s say the defendant can travel in time but that ability is not known by the court. (Only the lawyer and defendant know.) A witness comes forward to give the defendant an alibi at the time of the crime. The witness was actually with the defendant but (due to time travel) the defendant was in 2 places at once. The defendant isn’t taking the stand. But can the lawyer ethicaly call the witness to the stand? The witness will tell the complete truth as they know it and no one is likely to ask about time travel.

    • Prosecution has a duty to offer possibly exculpatory evidence to the defense. However, this is one-sided; the defense does not have any responsibility to help the prosecution (except for the requirement to testify truthfully while actually under oath).
      The problem is that defense attorney is not permitted to bring forth alternative theories of the crime which he knows to be false, or to advance legal arguments that are contrary to existing law, (with an out for “unless a good case exists that existing law should be altered.) Thus, since time travel makes an alibi defense inapplicable, the lawyer cannot present an alibi defense, making the testimony of the alibi witness inadmissible because it is not relevant.

      • Melanie Koleini

        Would it make any difference if the lawyer knew the defendant was not at the scene of the crime but was in fact in 2 other locations? (but the lawyer could only prove he was at one other location)

      • James Pollock

        I don’t think it would. If defendant can be in two (or more) places at once, then the entire consequence of alibi is irrelevant, and evidence that is irrelevant is inadmissible. Alibi is the proof that defendant couldn’t have done the crime because defandant can be proven to have been somewhere else. Not at all meaningful if defendant can have been at the scene of the crime AND somewhere else as well.
        Now, if there’s a witness who saw the scene and will testify that defendant was not in it, that’s different from alibi. It doesn’t matter how many places the defendant can be if they can be proven to have not been at the crime scene. If that witness is the lawyer, the lawyer must withdraw from representation (and shouldn’t have taken it in the first place).

      • Martin Phipps

        Time travel opens up an entirely new can of worms which hasn’t really been properly explored on this site because there are two theories of how time travel may work.

        1) A single time line. If there is a single time line then the accused can only go back and commit crimes that he has (in a sense) already committed. That is to say, the accused may not have committed the crime yet but the crime has already been committed by him. Say, for example, a man is accused of killing his boss: the forensic evidence and witness testimony are clear cut but the client is innocent because it was not him but his future self who committed the crime by going back and killing his boss. Does he go to jail? If he does go to jail then it won’t prevent the crime: the crime has already happened and supposedly it is inevitable that the accused will one day go back in time and kill his boss. Logically he should not go to jail until he has actually committed the crime he is accused of but then causality and free will come into play: when he went back in time to kill his boss his boss was already dead and all he did was close the causal loop.

        2) Multiple time lines. If there are multiple time lines then when you go back in time and kill your boss you haven’t really killed your boss but rather created a time line in which your boss is dead. Is this even a crime? And if you return to your timeline and your boss is still alive are you going to be charged with murdering your boss when your boss is still alive in the original timeline? How about your other self? Can he be accused of killing his boss? He may have an alibi and, sure enough, he wasn’t the one who killed his boss. In the case of multiple timelines then alibis should still get you off and it may be very difficult for a prosecutor to prove that you killed a version of your boss in another timeline.

      • Martin, your #2 sounds like “alternative universes”. I would think the obvious solution… extradition to the “site” of the murder… would take care of the legal ramifications.
        Or, you could probably convict on attempt. It’s unlawful to attempt to murder someone even if you don’t harm them at all. So the boss still being alive is no bar to that prosecution.

      • Melanie Koleini

        Does this mean that if Multiple Man is accused of a crime his lawyer can’t call alibi witnesses?
        Or would it be different because the prosecution would know he might have been in more than one place at the same time?

      • Martin Phipps

        I suppose any case involving time travel would come down to proving time travel was involved. As far as we know, time travel isn’t even possible. It is, at best, very difficult, so there would have to be some evidence, in particular a time machine of some sort and some indication that it was recently used.

      • Martin Phipps

        James, one problem with killing an alternative version of your boss (presumably just for the satisfaction) is that your boss in the original timeline (if there is more than one timeline) may not even know about it, let alone be harmed. There is no attempt on his own life. And if you can pass into another timeline and back without anyone knowing then it is the perfect crime because all the evidence will point to the alternative version of yourself who will presumably have an alibi. It would be the detectives in the alternative universe who would have to prove that time travel was involved and then they would have to prove that out of all the possible future timelines that it was you who committed the crime. That would be extremely difficult unless there is evidence that somebody passed from your timeline to theirs. Logically, such evidence would exist: it is hard to imagine somebody opening a bridge between universes, walking through and back and then closing it without leaving any evidence as to what really happened.

  4. Presumedly (and this is presuming) by “professional code of ethics”, Murdock could simply be talking about his own personal code of ethics of how he is a professional, not necessarily a code of ethics from the profession itself.

  5. Arthur Torkiver

    I just spent the summer studying for the MPRE…this brought back horrible memories.

  6. Just as a verdict of “not guilty” is not a statement that “the defendant is innocent of the charge” but rather “the state has not proved the defendant guilty”, so too with the plea. When the defendant pleads “not guilty” he isn’t making a claim of actual innocence, he is making a claim that the state has not yet proved him guilty. Which is a truthful statement, by definition.

    It’s a good thing that the rules of professional responsibility don’t require lawyers to withdraw if their client says they’re guilty… the client may believe himself guilty, but actually have a valid defense he doesn’t know about, and won’t learn of if his lawyers keep withdrawing representation.

  7. Actually, Murdock probably shouldn’t even have asked that question because if the client says he is guilty then, as you say, he has to dance around the issue. Furthermore, as other’s have said, Murdock’s own personal code of ethics or style may make it difficult if not impossible for him to defend the client.

    There was a similar situation in the 1996 movie Primal Fear: Edward Norton’s character said to Richard Gere’s character “I’m innocent” and Richard Gere’s character said “Don’t tell me that. It really doesn’t matter to me whether or not you are innocent because I am here to defend you whether you are innocent or not. It’s the jury you have to convince, not me.” Edward Norton’s character said “But I really am innocent” and Richard Gere’s character said “Good. Like that. If you sit in the courtroom with that look on your face you will make my job easier.”

    • Conversely, the defense lawyer needs to know as much about what happened as possible (for one thing, in case defendant did it but has an affirmative defense) but also to know what evidence to attack.

  8. Is it lying to say “Not guilty” if you actually committed a crime but don’t feel bad about it?

  9. Comics, like all fiction, simplify a very complicated problem.
    I am a criminal defense attorney, tho I work in appeals. All my clients have been convicted of serious felony offenses. Guilt is not part of my job — jury already decided that. My job involves making sure that they got a fair trial and due process of law. This involves making sure that the trial court and prosecutor followed the procedrual and evidentiary rules, that statutes were correctly interpreted and applied, and that the constitution (state and federal) was followed. Cases often talk about harm, and whether the State’s case was strong, which touches on whether the client was guilty, but there is a difference between saying, “the state’s case was weak because” and saying “the client is not guilty.”
    Sometimes clients tell me about what happened. Somtimes they don’t. I don’t need to know — the case is about what was said and done at trial. I often have an opinion, based on the trial evidence and the correspondence with the client. But 300 (and counting) DNA exonerations remind me to be humble about my opinion. In far too many of those cases, the lawyer concluded the defendant was guilty and didn’t put up much of a fight.

    • Seth Finkelstein

      In one of Alan Dershowitz’s books recounting his legal cases, he says something along the lines of only once in his career has his client ever admitted to him they were guilty, and that one was because the client was caught on tape. I’ve wondered about that, though perhaps it’s because he takes very few cases.

      As Martin Phipps note, in Murdock’s speech above, I’d parse his statement as saying he personally wouldn’t consider it ethical to continue representation, not that no lawyer at all could ethically continue representation. It probably connects to the mentality behind the superhero gig.

      • The person who asked the question thought that as well. I don’t know. I think if Murdock was only referring to his personal ethics then he would have said “my personal code of ethics” instead of “my professional code of ethics.” As an attorney, any time someone refers to a professional code of ethics, I take that to mean the ethical rules of the profession, not their personal code of ethics as a professional.

        But what’s more, I’m not sure that the rules of professional conduct would permit Murdock to withdraw just because a client confessed but wanted to plead not guilty. Withdrawal is permitted if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement,” but I don’t think pleading not guilty despite being guilty counts. The rules are pretty specific about this: “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered.” If the lawyer shall abide by that decision, then that seems incompatible with the idea of disagreeing with an action that the client “insists upon.”

      • James, the rules also require a lawyer to withdraw (if possible to do so without prejudicing the client’s interests) if the lawyer feels they will be unable to provide adequate representation (I believe that this rule is more targeted to the lawyer who has taken on too many cases to provide sufficient attention to each, but it could apply here if Murdock feels that his personal feelings on the subject would interfer with the representation.) I would think that prior to entering a plea is early enough in the process for client to obtain different counsel… although if he had to reach out to NY to get someone, the court may have to bar the withdrawal.

  10. I’ve often wondered about how defense attorneys can do it, especially working with a lot of the dregs of society. Can’t even imagine spending my life pretending to be sincere in convincing people.

    Hypothetical – a ruthless sociopath not only boasts about his crimes to his lawyer, but describes who he will kill next once he is found not guilty. (We’ll assume he’s extremely arrogant, which shows up fairly often with serial killers)
    How does confidentiality handle discussions of acts that have not occurred? Would the lawyer have any legal obligation to disclose the threat? Would it change anything if the information was very specific, or was concerning a person directly related to the current case such as the prosecutor or a witness?

  11. Clients say alot of things. Many times they are frustrated and angry, and they blow off steam to the attorney because the attorney is a safe person to rail at due to confidentiality. So the first question before getting into a Tarasoff issue (the case James P was trying to recall) is whether the attorney thinks the client is serious, is capable of doing harm, and is actually intends to do it. If the client in question is in jail and making bold statements of future venegeance if he/she is found not guilty — there’s no means to do the harm at present, so probably not necessary to breach attorney/client confidentiality at this time.
    A client who is clearly sociopathic is likely being evaluated by defense mental health experts for competence to stand trial and/or an insanity plea (rarely successful, but sometimes appropriate) — attorney could talk with that professional under the aegis of attorney work product (so the conversation is protected) for a professional’s opinion of whether client is serious or just blowing off steam.
    A Tarasoff decision is not something any professional does lightly — if time permits, it would likely be done after talking to the appropriate bar overseer (the folks who handle attorney/client ethics disputes) without giving identifying details to figure out how and when to disclose.

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