Defense Seldom Rests on Issues of Ethics and Duty : Law: Attorneys walk fine line in coaching criminal defendants. Some cases weigh heavily on the conscience.

Criminal defense attorney Cristina Arguedas was representing a black man charged with raping a white woman. The police had picked him up as a registered sex offender--he previously served prison time for three rapes--and the victim tentatively identified him in a lineup.

During the trial, Arguedas attacked the victim’s identification of her client as not only weak but racist. She won an acquittal.

Four months later, she picked up her telephone and heard a public defender say that the man had just been arrested again for rape.

“I went through this whole reflective, guilty thing that I had used my skills to injure another woman,” she said.

It was the ultimate criminal defense attorney’s nightmare. Obligated to defend with zeal, these lawyers nevertheless confront personal dilemmas in their relationships with their clients, caught between duty to the accused and revulsion for their violent crimes.

Like all lawyers, they also wrestle with ethical boundaries in the lengths they can go to defend and coach their clients. They can shape the story their clients will tell at trial, but they are not supposed to fabricate a script.

For Arguedas, the nightmare proved short-lived. After a week of torment, the public defender called her back. Her former client had been in a bank at the time of the rape and could not possibly have done it.

“So then I was a hero,” said Arguedas, who has been a criminal defense lawyer for 15 years. “It was at that time I realized that this isn’t for me to figure out. The system requires that someone like him have an absolutely vigorous defense.”

Although defense attorneys are often reviled by a crime-weary public, they are viewed as being among the more ethical members of the legal profession because prosecutors and, in some cases, the public, scrutinize their every move. They usually get paid whether they win or not.

“The criminal defense bar is far more honorable to deal with than the civil bar,” said Los Angeles County Deputy Dist. Atty. Marsh Goldstein, a prosecutor for nearly 30 years.

Considered the emergency doctors of the legal world, the nation’s estimated 15,000 to 25,000 criminal defense attorneys face realities that would have disappointed audiences of Perry Mason.

Most of their clients are guilty: About 90% of them plead so, although usually to reduced charges, experts say. The attorneys practice alone or in small firms, enjoy less status in bar associations than other lawyers, and, as a group, tend to distrust government and gravitate to the underdog.

Although a few earn fame and enormous riches, about half earn less than $80,000 a year and only a quarter make more than $125,000, according to a 1991 survey by a defense lawyers association. Lawyers who defend white-collar criminals tend to earn the most.

Arguedas is one of the rising stars of the profession. Working out of a warehouse district near Berkeley, she dresses in casual slacks, a long-sleeved shirt and sensible walking boots that would be appropriate on a hiking trail.

Her defense of the accused rapist violated no ethics: She was obligated to challenge the victim’s identification, even though she personally suspected that he probably had raped the woman.

The ethical land mines arise in the shaping of the defense, the intimate conversations between attorney and client where strategy is plotted and testimony is planned, where the story the defendant will tell in trial is pieced together.

These conversations are usually privileged, and the lawyer, like a priest hearing a confessor’s sins, is obligated not to disclose them. But defense lawyers described a variety of techniques they use with their clients, and ethics experts disagreed about how far the lawyers should go in molding a defendant’s tale.

Discrediting a prosecution witness the lawyer knows to be truthful is within ethical bounds, legal ethicists say, but helping a client perjure himself is far more problematic.

Lawyers are supposed to obtain “a set of facts” from their clients, not invent a story for them, said Yale law professor Geoffrey Hazard.

For instance, the lawyer should not tell a woman who killed her husband that she should claim she was abused by him if she was not.

“But the fact of the matter is, lawyers do tell their clients what to do, indirectly,” said Hazard, who teaches legal ethics. “How artificial they are, how artful, varies. . . . What do you do if you have a dumb client?”

Before asking for the facts, some attorneys may first inform their clients of the legal defenses to their crime.

To a man charged with hit-and-run, the lawyer might say: “If you ran from the scene because you feared the other driver was going to kill you, you may be acquitted. Take a couple of days to think about why you fled before you tell me what happened.”

Some ask their clients what the prosecutor will contend, not what happened, and give their clients a type of Miranda warning to avoid having to keep them off the stand.

Others say they want all the facts immediately and just try to put them in the best light. In many cases, the attorney simply tries to show that the government has not proved its case.

Ethical rules approved by state high courts tend to be ambiguous and often contradictory, and lawyers can interpret them differently.

Stanford University law professor William H. Simon, reflecting a minority view among legal ethicists, believes it is unethical for a defense attorney to try to impugn a truthful prosecution witness by arguing, for example, that the witness had poor eyesight.

Yet Hazard maintains that the lawyer is duty-bound to challenge the witness whose eyesight might be questionable. Even if the client told the lawyer he committed the crime, “that does not mean the witness observed him doing it,” Hazard reasoned.

Simon, whose views are stricter than most other ethicists, also believes a defense lawyer should not withhold pertinent information from the court--even if it is damaging to the client--or present a defense the lawyer is certain is untrue.

In a law review article last year, Simon cited the case of a Washington public defender whose client was charged with receiving stolen property. Police had arrested him as he and an accomplice transferred the stereo and television from a junked car to the back seat of the borrowed car the client was driving.

The client confided to his lawyer that he had put the property in the back seat because he did not have a key for the trunk. But the lawyer argued in court that the client obviously did not know the property was stolen because he did not try to conceal it in the trunk.

A jury convicted the defendant anyway. The lawyer, in Simon’s view, had acted unethically. “He presented misleading information to a jury,” Simon said.

Although lawyers can properly suggest a defense if the evidence does not exclude it, basing a case on a lie usually fails, many criminal defense attorneys say.

“If (clients) are going to concoct a defense because you suggested one, they are going to get torn to shreds on cross-examination,” said Oakland lawyer Robert Kroll. “They are not going to be believed.”

But lawyers must probe their clients’ memories. It is perfectly proper to tell a client in an interview: “I am not sure you were focusing as sharply as you should have when you gave the answer,” or “Wouldn’t it be just as accurate if you phrased it this way?” said Hofstra University Law School professor Monroe Freedman.

As officers of the court, lawyers are not supposed to aid their clients in committing perjury, and criminal defense attorneys almost uniformly insist that they do not allow their clients to perjure themselves.

Rules vary by state. California’s bar association recommends that lawyers withdraw from a case if they cannot dissuade their client from lying on the stand. If they cannot withdraw, they should refrain from repeating the lies in courtroom arguments.

But lawyers have latitude as long as they have no actual knowledge, such as corroborating evidence, that the testimony is perjurious, Freedman said.

In any case, most lawyers do not consciously or deliberately allow their clients to lie on the witness stand, said Yale’s Hazard.

“Either they talked themselves into the fact that it is not going on, that the person is just skirting the truth . . . or the lawyer manages to persuade herself that it might be the truth, or maybe it is not the truth and the lawyer pretends to be surprised,” he said.

San Francisco Public Defender Jeff Brown recalled that in his first criminal case, the defendant changed his story in the middle of the trial after realizing the prosecution’s witnesses were unsure of the weapon he used in an assault.

At first the client said he had a gun, later a wrench. Brown asked the judge to allow him to withdraw from the case once he realized his client was going to lie on the stand. The judge balked--”We’re in the middle of a trial”--and told him to proceed.

The perjury worked. The jury was hung, and charges were dropped to a misdemeanor.

“I think what you have to do is say to your client, ‘Look, I don’t think this a very good idea,’ and try to convince him not to lie on the stand,” Brown said. “But as a practical matter, an awful lot of perjury goes through the courts, not just in the criminal bar. It’s pervasive throughout the system.”

Beyond the ethical quagmires, criminal defense attorneys say they must overcome their personal horror of their clients’ suspected crimes to become effective advocates.

“You fight against any impulse of being repulsed by the crime itself,” said San Diego criminal defense attorney Chuck Sevilla, the appellate lawyer for Robert Alton Harris, who was executed in 1992. Harris killed two boys and then ate their hamburgers.

North Carolina attorney Donald H. Beskind, who teaches trial skills at Duke University Law School, said people always ask how a lawyer can defend someone so awful “because they never have to meet the person who is charged with the crime.”

“They hear the crime and then they presume what the person is like,” Beskind said. “When you . . . meet the person and understand what has gone on in their lives that made them that way, you have a very different reaction to them.”

Concerned about a client repeating his crime, defense attorney Alan Dershowitz subjects the defendants he represents to a standard lecture. His clients have included Claus von Bulow and Leona Helmsley.

“Every dog gets one bite,” the Harvard law professor tells his clients. “Don’t dream of calling me if you ever get in trouble again. Not only will I not represent you, I will be on the other side.”

When Dershowitz won the freedom many years ago of a murder defendant--he had helped plant a bomb that killed a young woman--he was unable to celebrate. The victim haunted him.

Rather than suffer such quandaries, some lawyers refuse to accept clients whose crimes are too troubling for them.

Arguedas says she is unsure whether she would ever represent an accused rapist who claimed the victim had consented.

“I do a really, heavy aggressive cross-examination,” she said. “I don’t want to do that on a woman by saying, ‘Didn’t you really want this?’ ”

For defense lawyer Christie Warren, the test came when she defended child molesters while she was pregnant. As her child moved inside her, she stood in courtrooms and defended men accused of violating other children in ghastly ways. Homicide cases were easier for her.

“You just have a little more baggage to get beyond” in rape and child molestation cases, said the assistant public defender in Sacramento.

Some defense lawyers cannot stand the turmoil and pressure and switch to other areas of the law after a while.

“I was tired of being treated as though I was a criminal,” said Beskind, who abandoned his criminal practice in North Carolina several years ago. “It was guilt by association.”

This guilt by association is widespread. Defense attorneys say they are often accosted in social settings about what they do, and, in the more extreme cases, receive chilling threats from the public.

Lawyer Danny Davis had to move five times while defending Raymond Buckey, who was accused of molesting scores of children at the McMartin Preschool in Manhattan Beach.

Two of Davis’ homes were firebombed, and men attacked him physically in the parking lot of the courthouse.

“I learned how to roll under my car, in my suit,” he said. “That is the best defense.”

Buckey was acquitted of 40 counts of molestation, and a mistrial was declared on eight counts.

On a more benign level, attorney Dershowitz found himself castigated when he took on the appeal of heavyweight champion Mike Tyson, who was convicted of rape in a trial Dershowitz believed was unfair. Female students at Harvard, where Dershowitz teaches, protested.

Dershowitz contends that the female students allowed the rape itself to overshadow the tenet that everyone deserves a defense and a fair trial, that government must prove beyond a reasonable doubt an individual’s guilt to protect the innocent from being wrongfully convicted.

“If even Harvard law students don’t understand the role of defense attorneys,” Dershowitz said, “we have a very, very difficult mission.”