The case for the defence

A criminal defence attorney has to be as proud of his enemies as of his friends.”

The quote above is by the American defence lawyer Alan Dershowitz. He was once asked in an interview what he would have done if he had been asked to defend the infamous Nazi Dr. Mengele. Dershowitz, who is himself a Jew, replied that he would have represented him, got him acquitted, and then strangled him outside the courtroom.

Alan Morton Dershowitz, who was born in 1938, is an American lawyer, jurist, and political commentator. A distinguished academic, he has spent most of his career at Harvard Law School, where in 1967, at the tender age of 28, he became the youngest full professor of law in its illustrious history. He is in the American context a political liberal. However, he has courted controversy with his proposal that judges issue torture warrants, and his impassioned defence of Israel, a subject guaranteed to raise the hackles of the left.

As well as his teaching and research, Dershowitz takes on a limited number of high-profile cases in his role as an appellate criminal defence lawyer. As he is paid by HarvardLawSchool, he does not depend on his income as a lawyer. This means that he has the luxury of picking and choosing the clients he is going to defend. You may not have heard of Dershowitz, but I am sure you will be familiar with some of his clients:

Claus von Bülow

Jim Bakker

Mike Tyson

O.J. Simpson

Bill Clinton

Patty Hearst

WikiLeaks

I should add that Dershowitz does not just represent celebrities; he takes half of his cases on a pro bono (free) basis. He has been dubbed the “winningest defence lawyer in history.” In his career Dershowitz has won more than 100 cases. He has an impressive strike rate for a part-time advocate who specialises in criminal appeals, which are notoriously difficult to win. In total Dershowitz has represented 36 people charged with homicide, 30 of whom were acquitted.” He does concede that most of them were probably guilty, but he can not know be sure which ones. For Dershowitz the system of justice is only as good as it is toward the worst person. He is quite open about representing guilty defendants – that is reality of being a defence lawyer. We might like to console ourselves with the Perry Mason image of the heroic defender. In the famous series Mason’s clients were always hapless victims of frame-ups, and the fearless lawyer was always able to unmask the real culprit at the end of the episode. Alas, this is pure fiction. Dershowitz argues that any defence lawyer who tells you that most of his clients are not guilty is either bullshitting or deliberately choosing only to represent a few innocent defendants. Dershowitz intentionally shies away from this. Whether the defendant is guilty, or his personal opinion about them, is irrelevant.  He is a gadfly who likes nothing better than representing guilty and contemptible defendants, whose prospects of winning appear minimal – this is one of the key obligations of being a defence lawyer. He likes to integrate his teaching and lawyering, and the challenging cases that he likes to take provide material for classroom discussion. What he ultimately strives for are those cases and that set a legal precedent.

What are the responsibilities of defence lawyer? I will be focussing mainly on the United States because their legal culture is so familiar to us through books and films. But much of what I’m going to say applies to many other legal systems. I could have looked at the rich English tradition of common law, or the alternative favoured in Spain and France – the inquisitorial system.

It is not the function of a defence lawyer to decide if his client is guilty or not. They must instead determine if the laws were followed in relation to the charges against their client. The fundamental duty of a criminal defence lawyer is to vigorously defend their client within the bounds of the law. This is the principle of zealous representation. The duty of a defence lawyer is not to do justice, but to defend their client. Their role is not analogous with that of the prosecutor whose role is not to prosecute, but to do justice. To effectively represent their clients defence lawyers must have a good grasp of the Constitution. The Fourth Amendment protects against unlawful searches and seizures, while the Fifth Amendment governs the right to remain silent so you do not incriminate yourself. In the United States this is known as a Miranda warning, and it usually goes something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

In Britain it was tweaked a bit a few years ago:

You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

If there are no constitutional violations, the work of a criminal defence lawyer might be more about negotiation, arranging a deal or plea bargain that permits their client to admit guilt to a lesser offense or that results in a lower sentence than if the accused has pleaded guilty.

The most famous obligation of a lawyer is that of confidentiality. To be admitted to the bar a lawyer must vow to “maintain inviolate the confidences of a client.”  Even if a client confesses to committing a serious crime, their lawyer cannot divulge this information to anyone. The rationale is that by assuring confidentiality the privilege encourages clients to make “full and frank” disclosures to their lawyers, enabling the latter to provide frank advice and more effective representation. A lawyer who violates this confidentiality may be reprimanded or even disbarred for life.

This is the theory. In practice it must be very hard to represent some types of criminal. I can’t imagine how I would feel if I got a paedophile off on a technicality or I had to cross-examine the victim of abuse. The recent case of Frances Andrade is a cautionary one. Andrade, a 48-year-old professional violinist killed herself on January 24th this year, three days after she had given evidence at the trial of choirmaster Michael Brewer, who was found guilty of five counts of indecent assault. The abuse took place when Andrade was a teenager. Could her suicide have been prevented? The case raises questions about the role of Kate Blackwell QC, the defence barrister who cross-examined her. After the trial Andrade texted a friend to say she felt like she had been “raped all over again” after appearing in the witness box at Manchester crown court. Blackwell had accused her of lying and being a fantasist. Does she bear some responsibility for Andrade’s death?

Technicalities are not trivial and the defence should be allowed to rigorously challenge evidence that could send someone to prison for many years. I found it a little unsettling when, after the recent Jimmy Saville case, the police were saying that victims “will be believed.” I always take issue with some feminists. When it comes to rape they seem to want to forget the rule of William Blackstone: It is better that ten guilty persons escape than one innocent suffer.

Defence lawyers may be seen by some as ethical scumbags, but I don’t see it that way. We should only incarcerate people when there is overwhelming evidence to justify it. What emotions do they feel when their guilty clients go free? They know that the constitutional prohibition against “double jeopardy” means that their clients will go unpunished. But that is their job and it is one for which we should be grateful to them.

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One Response to The case for the defence

  1. Jerry says:

    The only time I’ve ever refused champagne was years ago when my neighbour, an up-and-coming young barrister, invited me to celebrate with him: he’d just got his client, accused of raping a seven-year old girl, acquitted. “Was he innocent?”, I asked. “Oh no- he was as guilty as sin! Cheers!”….

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