Comment by lordgrenville | Hacker News Reader

Comment by lordgrenville | Hacker News Reader

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Earlier this year I read the book The Chickenshit Club on the advice of someone on here. It has a lot of interesting information but I didn't agree with the author's summary, basically: "prosecutors are cowardly and don't fight cases that don't look easily winnable. They should be braver and go for the highest-profile cases to make a statement". This seems wrong to me because a) litigating a complex, lengthy case and losing is a huge waste of public funds (it isn't a deterrent if the defendants know they can hire expensive lawyers and get off) and b) it can often be counterproductive, since it leads judges to set precedents which make their work harder in future.

One regulatory ideas I thought of was a salary cap on criminal defence attorneys (lawyers can make as much money as they want in civil law, but letting the wealthy hire a different league of lawyers in criminal cases is a huge distortion of justice). This is all more about actual crimes than violating the spirit of the law, but maybe the same could apply to tax law. (I feel like there must be a flaw with this, would be happy to hear what it is.)

(Wrote more about the book here: https://www.goodreads.com/review/show/3507224023)

The flaw is simple: you'll end up with only having as criminal defence attorneys those people who didn't succeed at being civil case attorneys, as everyone will prefer to earn more money with mostly the same training. So you won't have any outstanding criminal defence attorneys, which is equivalent to undermining the rights of those of need to defend themselves in criminal cases.

If you want to go this way, you have to go for the full-fledged solution: either the defendant choses their attorney (at a capped price) or an attorney shall be selected at random among all attorneys registered with the bar and must take charge of the case, the only exception being if they have a valid conflict of interest in that case.

But prosecutor salaries are (more or less) fixed, so if you let defence attorneys earn the same as prosecutors I don't think this harms the right of the defendant. You have a right to a reasonably good lawyer, but not to be defended by the most brilliant legal mind on earth who could get anybody acquited. The randomisation suggestion sounds good too.

A defense attorney is not defending only against a prosecutor in some kind of 1:1 coverage. They're defending against the prosecutor who also has a substantial fraction of the power of the entire government behind them. They can use a large amount of crime lab, detectives, investigators, etc.

I would argue almost the opposite. I don't see how it serves the public interest to limit the amount of resources people are allowed to use to defend themselves against the state. it's sort of like combating inequality by burning down the nicest houses. you've made everyone more equal, but no one is better off for it.

I think the imbalance is actually much worse in civil cases, which are disputes between people who ought to be peers. the fact that people have to give up their right to see an opponent in court because they can't afford counsel seems much worse than some rich people getting a better defense against the state.

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