New audio of Clinton talking about 1975 defense of alleged child rapist

[Meursault]

Much bigger. Defense attorneys are legally mandated to provide an effective defense for their clients.

[The world will shine with light in our nightmare]

Unfortunately, I wasn't able to actually hear the audio clip last night because my computer's been having some connection problems, but based on the excerpt I heard on CNN today, it wasn't really that bad and the article makes it sound worse than it is.  In fact, the "laughs" didn't sound like much more than nervous giggles.  So, while this isn't in any way a good thing for Hillary, it's probably not going to mean much of anything in the long run, especially considering most scandals that happened more than thirty years ago tend to have minimal impacts on elections.

[Middle-aged Europe]

Obviously, she was obligated to defend the guy, and no one can fault her for that.  It is nonetheless disheartening to read that she basically tried to use the "little bit nutty, little bit slutty’’ rape defense in a case where the victim was a 12 year old.  (E.g., she wrote "I have been informed that the complainant is emotionally unstable...with a tendency to seek out older men and to engage in fastasizing.”)

Well, to play the devil's advocate for a moment... her strategy worked, didn't it?

Is it a defense counsel's obligation to seek a more ethical, but potentially less effective strategy?

[Mr. Morden]

Obviously, she was obligated to defend the guy, and no one can fault her for that.  It is nonetheless disheartening to read that she basically tried to use the "little bit nutty, little bit slutty’’ rape defense in a case where the victim was a 12 year old.  (E.g., she wrote "I have been informed that the complainant is emotionally unstable...with a tendency to seek out older men and to engage in fastasizing.”)

Well, to play the devil's advocate for a moment... her strategy worked, didn't it?

Is it a defense counsel's obligation to seek a more ethical, but potentially less effective strategy?

I don't know, I'm not a lawyer.  I don't know what the professional code of ethics includes.

I would be curious if any lawyers here can offer their take on two distinct types of character attacks on a witness:

1) Attack the witness's credibility for the purpose of convincing the jury to doubt their story.

2) Attack the witness's credibility by engaging in character assassination of the type that would be traumatic to the witness solely because you want to intimidate them into not testifying, thus encouraging the prosecutor not to bring the case to trial.

#1 seems like common sense.  If you're a good lawyer you have to do it.  #2 seems rather ethically sketchy, and gets into creepy territory when you're talking about a kid.  But of course, one can't really prove in a particular case what the lawyer's motivation for such a character attack is.

[Knives]

WAIT, so she did her job and this is a scandal!?

[RogueBeaver]

The victim spoke to Josh Rogin: "Hillary Clinton took me through hell."

[Mechaman]

I highly doubt this will become an issue.

If this was, say, Rand Paul or Chris Christie, then you guys would be all over this.

While I do believe that it's not fair to bring up something that happened forty years ago as a testament to a person's character I have to agree with this.  A bunch of our red avatards after all, could not shut up about Mitt Romney being an anti-gay bully in the 1960s, when he was like 17 or something.

My personal opinion on this: Clinton was 27 years old when this took place.  Believe it or not 27 year olds are still pretty immature.  Especially if you take somebody right out of an Ivy League education it's tempting for them to get the ego of a god if they are earning big figures at a time when others are struggling to make ends meet.  While I am not a fan of Clinton there is always the possibility that she has matured from this incident and feels great remorse about those remarks.

For the record, the point the article is making is that she was actually laughing about winning her case and demonized a 12 year old as an outright slut who slept with older men.  Not that she won a case as a defense lawyer.

However, given the pathetic way the media treats all matters of controversy relating to candidates and the culture of demonization in this country, many people just won't care about that.  This probably will make the news and probably have a bit of a negative impact, but I expect her to recover pretty well.

[Mr. Morden]

The victim spoke to Josh Rogin: "Hillary Clinton took me through hell."

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[IceSpear]

I highly doubt this will become an issue.

If this was, say, Rand Paul or Chris Christie, then you guys would be all over this.

While I do believe that it's not fair to bring up something that happened forty years ago as a testament to a person's character I have to agree with this.  A bunch of our red avatards after all, could not shut up about Mitt Romney being an anti-gay bully in the 1960s, when he was like 17 or something.

Was Mitt Romney's career objective to bully gay people?

Besides, hardly anyone talked about that a week or two after the news broke, but you can take to the bank that the right wing echo chamber will be screaming about how Hillary loves rapists or whatever for the next 20 years.

[All Along The Watchtower]

Disgusting, but not surprising.

[MASHED POTATOES. VOTE!]

Everybody knows I'm far from being anywhere close to Hillary's bandwagon and I do actually have severe doubts about her character as a politician, but I don't think something that happened almost 40 years ago when, as Mecha pointed out, she was a very young lawyer, can testify to her moral qualities, or lack of thereof, now.

Under American adversary legal system, everybody is entitled to an aggressive defense from her or his defense lawyer. And every defense lawyer is professionally and ethically obliged to do her or his best in client's interest. Furthermore, in this particular case, she was actually appointed by the court to do this job.

Unless there is actual evidence she broke professional ethics (which, again, was almost 40 years ago), then it shouldn't be an issue.

[pbrower2a]

A defense attorney has an obligation to offer the most spirited defense of a defendant, no matter how infamous the defendant and the alleged crime. In the 1970s the norm of a rape defense was to accuse the victim. In essence,

"She dressed provocatively".
"She egged him on".
"She was loose".

With a twelve-year-old girl, none of this would now work.  If an adult has any sexual contact with a twelve-year-old child, then he has committed statutory rape. But that is not how things were in the 1970s, when the legal practice was far more permissive toward men.

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

[Fritz]

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

So, you're saying that 40 years ago, sex with children was considered okay?  I don't think so.

[pbrower2a]

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

So, you're saying that 40 years ago, sex with children was considered okay?  I don't think so.

No -- I remember the saying "17 will get you 20" back in those days -- having sex with a 17-year-old might get one a 20-year term in prison. Sex with children was illegal, but it was not quite as stigmatized as it is today. But "17 will get you 20" applied to local conditions. If one got a 17-year-old pregnant and refused to marry her, then you might be in trouble. Race (black man, white female) might make the legal ramifications of rape even worse.

Proof of rape, especially forcible rape, was far more difficult than it is today. Because rapes were usually done in darkness or at least subdued lighting, identification of a stranger as a rapist was shakier. DNA samples can establish an air-tight case, but those were unavailable forty years ago, when defense attorneys often tripped up an otherwise-reliable witness on the fuzziness of identification of a rapist. DNA isn't so fuzzy in its identification of an offender.

Attitude toward violent crime have also changed. Criminals are no longer seen as victims of oppression and economic distress -- even by liberals -- but instead as monsters.

[Mr. Morden]

A defense attorney has an obligation to offer the most spirited defense of a defendant, no matter how infamous the defendant and the alleged crime. In the 1970s the norm of a rape defense was to accuse the victim. In essence,

"She dressed provocatively".
"She egged him on".
"She was loose".

With a twelve-year-old girl, none of this would now work.  If an adult has any sexual contact with a twelve-year-old child, then he has committed statutory rape. But that is not how things were in the 1970s, when the legal practice was far more permissive toward men.

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

Right.  But that doesn't get at the question I posed: OK, "A defense attorney has an obligation to offer the most spirited defense of a defendant" as you say.  But is there any such thing as an unethical defense?  If you attack the credibility of a witness for the purpose of intimidating them from testifying because they won't want to testify if their name is dragged through the mud (and thus forcing a plea bargain) rather than for the purpose of convincing the jury, is that unethical?  Are you ethically required to do that if you think it will work?  I understand that this used to be a very common tactic for lawyers in rape cases, but was it right?

Also, this woman says that Hillary lied about the supposed rumors of her "seeking out older men" and accusing others.  We don't know the truth of that, of course, but if Hillary was in fact just making it up, then is that a breach of ethics, or does anything go for a lawyer as long as you legitimately think your tactic will "work"?

[pbrower2a]

A defense attorney has an obligation to offer the most spirited defense of a defendant, no matter how infamous the defendant and the alleged crime. In the 1970s the norm of a rape defense was to accuse the victim. In essence,

"She dressed provocatively".
"She egged him on".
"She was loose".

With a twelve-year-old girl, none of this would now work.  If an adult has any sexual contact with a twelve-year-old child, then he has committed statutory rape. But that is not how things were in the 1970s, when the legal practice was far more permissive toward men.

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

Right.  But that doesn't get at the question I posed: OK, "A defense attorney has an obligation to offer the most spirited defense of a defendant" as you say.  But is there any such thing as an unethical defense?

Spirited, yes. Unethical, no.  Some attorney conduct is subject to disbarment, and much of it relates to failing to provide a competent service to the client.

I doubt that defense attorneys in rape cases can now impeach a minor victim with such smears as   

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because it is now assumed that a twelve-year-old is incapable of making a competent decision to have sex with an adult. The adult has the adult responsibility to recognize that a twelve-year-old cannot give consent to sex. 

There are legal codes of ethics, and the opposing attorney can object to misconduct in the courtroom. Testimony struck from the record must be ignored.

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It may still be done with an adult.  Being a prostitute or a performer in strip shows or adult video would be impeachable. But as a rule, sex without consent is rape, and if the alleged victim is unable to consent, then the sex is rape. Such would include sex while under anesthesia or date-rape drugs. Sex involving abuse of power (teacher able to give or deny a passing grade, student threatened to have sex or flunk)  is rape.

Sexual assault could easily be reduced to non-sexual or simple assault through a plea bargain should the case of assault be obvious and sexual context not so solid. But that is a case-to-case situation.     

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Have you ever heard of Anna Nicole Smith? In her case it was shady, but perfectly legal.

[Oakvale]

Every new bit of horrifying information that comes out about Hillary Clinton this last decade makes her swift impeachment over Benghazi in mid-2017 all the sweeter.

[IceSpear]

Every new bit of horrifying information that comes out about Hillary Clinton this last decade makes her swift impeachment over Benghazi in mid-2017 all the sweeter.

And people say Hillary Clinton supporters are bitter...

[Bull Moose Base]

A defense attorney has an obligation to offer the most spirited defense of a defendant, no matter how infamous the defendant and the alleged crime. In the 1970s the norm of a rape defense was to accuse the victim. In essence,

"She dressed provocatively".
"She egged him on".
"She was loose".

With a twelve-year-old girl, none of this would now work.  If an adult has any sexual contact with a twelve-year-old child, then he has committed statutory rape. But that is not how things were in the 1970s, when the legal practice was far more permissive toward men.

Sexual attitudes have changed severely in forty years. We have become far more accepting of homosexuality and extremely intolerant of sex with children.  

Right.  But that doesn't get at the question I posed: OK, "A defense attorney has an obligation to offer the most spirited defense of a defendant" as you say.  But is there any such thing as an unethical defense?  If you attack the credibility of a witness for the purpose of intimidating them from testifying because they won't want to testify if their name is dragged through the mud (and thus forcing a plea bargain) rather than for the purpose of convincing the jury, is that unethical?  Are you ethically required to do that if you think it will work?  I understand that this used to be a very common tactic for lawyers in rape cases, but was it right?

Doesn't sound like the victim knew Hillary reported hearing this information about her when requesting a psychiatrist evaluate. Not sure we can assume it was an attempt to intimidate her. Doesn't sound like there was any ever testimony or jury either. If the rapist said this to cast doubt on the victim's credibility, as low as it is, Hillary would be derelict in her duty as his attorney to not include it.

It's weird to me that the prosecutor would ask her to represent a rapist since his boss would have been Bill Clinton, then Arkansas's AG, preparing to run for governor. Also weird that Hillary would give such a candid interview when Bill was surely already eyeing a run for president.

Hillary mentioned this in her first book it seems. Looking forward to hearing Schweitzer's take on it.

[MASHED POTATOES. VOTE!]

Every new bit of horrifying information that comes out about Hillary Clinton this last decade makes her swift impeachment over Benghazi in mid-2017 all the sweeter.

And people say Hillary Clinton supporters are bitter...

One doesn't disprove the other

[Badger]

Obviously, she was obligated to defend the guy, and no one can fault her for that.  It is nonetheless disheartening to read that she basically tried to use the "little bit nutty, little bit slutty’’ rape defense in a case where the victim was a 12 year old.  (E.g., she wrote "I have been informed that the complainant is emotionally unstable...with a tendency to seek out older men and to engage in fastasizing.”)

Well, to play the devil's advocate for a moment... her strategy worked, didn't it?

Is it a defense counsel's obligation to seek a more ethical, but potentially less effective strategy?

I don't know, I'm not a lawyer.  I don't know what the professional code of ethics includes.

I would be curious if any lawyers here can offer their take on two distinct types of character attacks on a witness:

1) Attack the witness's credibility for the purpose of convincing the jury to doubt their story.

2) Attack the witness's credibility by engaging in character assassination of the type that would be traumatic to the witness solely because you want to intimidate them into not testifying, thus encouraging the prosecutor not to bring the case to trial.

#1 seems like common sense.  If you're a good lawyer you have to do it.  #2 seems rather ethically sketchy, and gets into creepy territory when you're talking about a kid.  But of course, one can't really prove in a particular case what the lawyer's motivation for such a character attack is.

As long as #2 doesn't cross the line into slander, both are part and parcel for defense attorneys. Trust me.