【大西洋月刊】律师能否宣布委托人有罪?

取经号JTW2019-02-08 02:10:31


司法中的实际操作跟电视上演的可不一样。律师并非案件的核心,委托人才是。律师只能提供建议,制定辩护策略,但归根到底,关键决策都掌握在委托人手里,律师是做不了主的。毕竟对律师来说,官司一打完就成了办公室的一卷档案纸——但对委托人来说,就是整个人生。


律师能否宣布委托人有罪?


作者:GARRETT EPPS

译者:邵海灵&邹世昌

校对:王津雨

策划:王津雨&赵萌萌


The Supreme Court considered whether lawyers can decide what is best for clients and ignore their wishes. 

律师能否无视委托人的意愿,做出自认为对他们最好的决定?请看最高法院的定夺。


本文选自 The Atlantic | 取经号原创翻译

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On a television lawyer show—take The Good Fight, the best of the genre currently available—a legal case is all about the lawyers. In a typical episode, for example, lawyer Lucca Quinn must prove her client's innocence, safeguard her job at her law firm, keep up with her pregnancy-related back exercises, win the respect of a tough federal judge, and protect as best she can her relationship with the former prosecutor—who happens to be the father of her unborn child. She usually succeeds brilliantly.

《傲骨之战》是一部司法题材的电视剧,也是目前此类剧集中最好看的一个了。故事里的所有官司都是围绕律师展开的。举个例子,作为一名辩护律师,卢卡·奎恩律师必须证明被告的清白、保住自己的饭碗、坚持孕期必需的背部锻炼、赢得态度强硬的联邦法官的尊重,同时尽力保护她和前任检察官之间的恋情——说来也巧,这位先生正是她尚未出生的孩子的爹。这些都是某一集里的典型剧情。而主人公往往能够力扛千钧,完美胜出。


Oh, yeah, almost forgot—her client gets off. Sometimes.

哦,对呀,差点儿忘了——她的委托人也逃过了法律的严惩。我是说,有的时候。


Young lawyers learn early—in clinical training or in practice—that the actual practice of law isn't much like The Good Fight. The client, not the lawyer, is the center of a case: A lawyer offers advice, and decides on trial strategy, but in the end, the key decisions are the client's, not the lawyer's, to make. In a criminal case, those key decisions are whether to plead guilty, whether to seek a jury trial, whether to testify, and, if convicted, whether to appeal.

在临床训练或实战经历中,年轻的律师们早就会发现:司法中的实际操作跟电视上演的可不一样。律师并非案件的核心,委托人才是。律师只能提供建议,制定辩护策略,但归根到底,关键决策都掌握在委托人手里,律师是做不了主的。在一起刑事案件中,关键决策包括是否认罪、是否寻求陪审团的介入、是否作证,以及,如果被判有罪,是否提起上诉。


In our system, those decisions are too important to be left to a third party. As a very fine criminal-defense lawyer I knew used to say to his clients, "When this case is done, it's going to be a file in my office—but it's going to be your life."

在我们的制度里,这些决定太过重要,因此不能由第三方代为做出。我认识一位相当杰出的刑事辩护律师,他对委托人常说的一句话就是:“等这个官司打完了,它就是我办公室的一卷档案纸——但对你来说,就是整个人生。”


I don't know whether Justice Ruth Bader Ginsburg or Justice Samuel Alito of the Supreme Court watch The Good Fight, but if so, I suspect each sees a different story. At least that's the conclusion I would draw from McCoy v. Louisiana, the bizarre death penalty case decided Monday by the Supreme Court. In ordinary English, here is the question it posed: If a defendant says he is not guilty, and refuses to plead guilty, can the lawyer nonetheless tell the jury, "My client is guilty"?

我不知道最高法院的露丝·巴德·金斯伯格法官或塞缪尔·阿利托法官是否也看《傲骨之战》,但如果他们看的话,恐怕不同的人会看到不同的故事。至少这是我从路易斯安那的麦克考伊一案里得出的结论。这是最高法院周一裁决的一起离奇死刑案。用通俗一点的话来说,此案引出的问题是:如果被告说自己是无辜的,并拒绝认罪,那辩护律师是否仍然可以告诉陪审团:“我的委托人有罪


Ginsburg, joined by five other members of the Court, said no; Alito, joined by Justices Clarence Thomas and Neil Gorsuch said, in effect, Why not, if the client won't see reason?

金斯伯格和其他五位法庭成员的回答是:不可以。而阿利托及同为法官的克拉伦斯·托马斯和尼尔·戈萨奇却说:如果委托人拿不出道理,律师为什么不能这样做?


In fairness, the lawyer, Larry English, is a very sympathetic figure. He conceded guilt because he was trying to save his client, Robert McCoy, from almost certain death. McCoy, by contrast, seems like a killer with serious mental problems.

平心而论,这位名叫拉里的辩护律师,是一个富有同情心的人。被告罗伯特·麦克考伊会被判死刑,这简直就是板上钉钉的事情。而他之所以承认被告有罪,是因为还想力挽狂澜,救他一命。相比之下,麦克考伊看起来倒像是个精神严重有问题的杀人犯。


But, as Ginsburg and the majority pointed out, a Louisiana "sanity commission" found McCoy competent to stand trial. The definition of "competence" in this context, given in a Supreme Court case called Godinez v. Moran, is "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." English obviously suspected that determination was wrong, but because he was McCoy's lawyer, it was binding on him.

但,正如金斯伯格和大部分人指出的,路易斯安那的一个“健全委员会”已经认定麦克考伊神志清醒,可以受审。根据最高法院在莫兰市的戈迪內斯一案中给出的定义,这里的“受审能力”,指的是“目前有足够的能力咨询律师,具备适当程度的理性理解力。”拉里显然怀疑这个裁决的正确性,然而由于他是麦克考伊的辩护律师,这一裁决对他也具有约束力。


Here are the facts. In 2008, someone shot to death the mother, stepfather, and son of Yolanda McCoy, Robert McCoy's estranged wife. On the night of the murders, McCoy's mother-in-law was heard on a 911 call screaming, "She ain't here, Robert!"—followed by shots. Police saw someone who looked like McCoy driving away from the scene in McCoy's car. The suspect abandoned the car and got away, but in the car was a receipt for the ammunition used in the killings. Surveillance footage showed McCoy buying those bullets on the day of the murder. Two people testified that he had admitted at least one of the killings to them.

事实经过是这样的:2008年,有人枪杀了尤兰达·麦克考伊的母亲、继父和儿子,而尤兰达是罗伯特·麦克考伊分居已久的妻子。谋杀发生的当晚,麦克考伊的丈母娘给911打了报警电话,在电话那头大喊道:“她不在这儿,罗伯特!”紧接着就是枪声了。警察看到一个容貌好像麦克考伊的人开着麦克考伊的车驶离了现场。犯罪嫌疑人后来弃车逃跑,但车上还留有购买弹药的收据,这弹药就是凶手在枪击案中使用的。监控录像显示麦克考伊在谋杀案发生当天购买了这些弹药。有两个人作证说,麦克考伊向他们承认过,三名受害者里至少有一个是他杀死的。


Once McCoy was arrested and charged, however, he told a story familiar to anyone who has even dipped a toe into criminal practice: He wasn't there; he was out of town; it was a frame-up; it was a conspiracy; the police did it themselves just to get him.

然而,警方逮捕并起诉麦克考伊后,他的供词却是任何一个对刑事案件有过哪怕一丁点儿了解的人都很耳熟的:事发当晚他不在现场,而是在外地;一切都是诬陷之词;都是阴谋和陷阱;是警察自己杀了人,又想嫁祸于他。


In those circumstances, English understandably thought the only real question was whether his client would get the death penalty or life in prison. He tried to convince McCoy to admit guilt, then allow English to put on evidence of his mental illness, and hope for a merciful jury. It's hard to fault that professional judgment, but McCoy wouldn't have it. "I did not murder my family," he said. English tried to withdraw as counsel, but the trial judge refused. "You are the attorney," the judge said. "You have to make the trial decision of what you're going to proceed with."

在这种情况下,拉里认为,摆在其委托人面前的路只有两条:要么死刑,要么终身监禁,且这种想法是可以理解的。拉里试图说服麦克考伊认罪,然后允许自己证明他有精神疾病,指望遇到一个仁慈的陪审团。尽管很难找出这一专业判断的漏洞,但麦克考伊还是拒绝了。他坚称:“我没有谋杀我的家人。”拉里试图退出,不再担任辩护律师,但审判法官决绝了这一请求。法官说:“你是他的代理律师,你必须做出决定,把这场官司打到底。”


When the trial began, English told the jury:

审判伊始,拉里就对陪审团说:


My client committed three murders … the evidence that will be put on that screen, that will come from that stand will say that he did it. Mr. McCoy has seen that evidence, but yet he -- in all of his soul he does not believe he committed these crimes … But in layman terms, Mr. McCoy is crazy, ladies and gentlemen.

我的委托人谋杀了三个人……支持这一观点的证据将会被展示在屏幕上,并用来说明确实是他犯的。麦克考伊已经看过证据,但在他的内心深处,他依然不相信是他犯下了这些罪行。然而,简单来说,女士们和先生们,麦克考伊是个疯子。


McCoy later took the stand and told the jury his incredible story, while English argued that he was mentally ill and unable to form the "specific intent" needed for capital murder. The jury found him guilty; after hearing evidence about his mental state, it sentenced him to death.

麦克考伊随后出庭作证,并告诉了陪审团他不可思议的故事,而拉里则争辩,他精神上有问题,无法形成一级谋杀所需的“特定意图”。陪审团裁定麦克考伊罪名成立;法庭在听取了他的精神状况报告后,判处了他死刑。


The Supreme Court Monday set the conviction aside. Ginsburg analyzed the issue as involving a client's "autonomy to decide … the objective of the defense." She explained:

最高法院星期一驳回了该项定罪。金斯伯格分析后认为,这个问题涉及委托人对辩护目标的自主决定权。她解释道:


Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members.  Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. … When a client expressly asserts that the objective of "his defen[s]e" is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

律师可能会在评估后认为,认罪是避免死刑的最佳方法,这也在情理之中,正如拉里在此案中所做的那样。但委托人可能并不认可这一目标。他首先可能希望避免承认自己杀害家人的耻辱。或者,他可能认为监狱生活不值得过,并且宁愿为被判无罪的可能(无论多么渺茫)甘冒死刑风险。当委托人明确表示“他的辩护”目标是不接受任何犯罪指控,那么他的律师就必须遵照该目标为他辩护,而不是通过认罪来越俎代庖。


When McCoy insisted that he did not commit the murders, Ginsburg said, "a concession of guilt should have been off the table."

金斯伯格认为,如果麦克考伊坚称自己没有犯下谋杀罪,“认罪这一选项就不应该出现在考虑范围内。”

off the table 不予讨论;离开台面


In his dissent, Alito told the story through the lens of English's dilemma.

而阿利托提出了异议,从拉里所处的困境出发讲述了这一案件。


Petitioner availed himself of his right to take the stand to tell his wild story. Under those circumstances, what was English supposed to do? … The result of mounting [McCoy's] conspiracy defense almost certainly would have been disastrous. That approach stood no chance of winning acquittal and would have severely damaged English's credibility in the eyes of the jury, thus undermining his ability to argue effectively against the imposition of a death sentence … So, again, what was English supposed to do?

被告运用自己的发言权讲述了他荒诞不经的故事。在这种情况下,拉里还能怎么办?……几乎可以肯定的是,麦克考伊阴谋论的辩护将会带来灾难性的结果。这种做法不但不可能被判无罪,而且会严重损害拉里在陪审团眼中的可信度,从而削弱他有效抗辩死刑判决的能力……那么,还是这个问题:拉里应该怎么办?


The answer to that, though painful, is clear. English wasn't obligated to tell the jury to believe McCoy. He didn't have to argue himself that McCoy wasn't guilty; he could confine his own argument to the mental-state part of the case. (As Alito put it, he could have said, "I submit to you that my client did not have the intent required for conviction" of capital murder.) But he couldn't keep McCoy off the stand. And he couldn't say, "Don't believe him. He's guilty."

对这个问题的回答尽管痛苦,但却很清楚。拉里没有义务让陪审团相信麦克考伊。他不必为麦克考伊进行无罪辩护;他可以将辩护内容局限在该案的精神状况部分。(正如阿利托指出,他本可以说,“我向你们提出,我的委托人没有一级谋杀定罪所需的意图。”)但他不能阻止麦克考伊作证。并且他也不能说:“别相信他,他有罪。”

capital murder: was a statutory offence of aggravated murder in Great Britain and Northern Ireland and the Republic of Ireland. In the United States, a capital murder is any murder that makes the perpetrator eligible for the death penalty. 一级谋杀,在美国是可以判定被告死刑的罪名


The case is agonizing, because McCoy probably shouldn't have been allowed to stand trial; once found competent, he insisted on marching to his doom. But the legal question, to me, doesn't seem hard. McCoy v. Louisiana is the story of McCoy, and the story of the victims he slaughtered. Even though it put Larry English through the wringer, it was not his story.

这件案子令人苦恼,因为麦克考伊很可能本来就不该获准受审。一旦发现他有能力(形成杀人意图),他的坚持将使他走向灭亡。但在我看来,法律问题并不难解决。这件案子是麦克考伊自己以及被他杀害的受害者的事。尽管它让拉里陷入了困境,但这仍不是他的事。


Alito is absolutely right that McCoy didn't know his own best interests. The logical result of his opinion, however, would be a system where lawyers decide what is best for clients and ignore their wishes—where, in effect, a defense lawyer acts as judge and jury.

阿利托说得很对,麦克考伊并不知道自己的最大利益。不过,按照正常的逻辑推理,他的观点将会催生这样一种制度:律师可以无视委托人的意愿,自行决定什么是对他们最好的。在此制度下,辩护律师实际上扮演了法官和陪审团的角色。


Even Lucca Quinn doesn't do that.

甚至卢卡·奎恩也不会这么做。


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<原文链接:https://www.theatlantic.com/politics/archive/2018/05/should-lawyers-ever-force-their-clients-to-act-in-their-best-interest/560498/>

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