I went through a stage about five years ago. I’d get into a taxi and start up a friendly conversation with the driver. Then the driver would ask me what I did for a living. “I’m a lawyer,” I’d say. The driver’s face would fall.
“You help keep guilty people out of gaol,” he’d say, frowning. First, I’d defend myself by saying that I do not touch Criminal Law with a 10 ft barge pole. I’m not suited to it. Strictly commercial law only. I’d then try to explain the following:
LE: “You see, everyone has a right to legal representation.”
Taxi driver: “What, even people who are guilty as sin?”
LE: “Well, it’s not for me to make a judgement about whether they are guilty or not. That’s for the jury. All I can do as a lawyer is to act on their instructions.”
Taxi driver: “But what if you strongly suspect they’re guilty?”
LE: “It’s not for me to judge. What happens, for example, if there is a criminal who is accused of a crime, and has in fact committed many prior crimes, but this time he didn’t do it. Don’t you think it would be unfair if he couldn’t get representation, just because everyone thought that he’d done it?”
Taxi driver: “Well, he probably deserves to go to jail anyway!”
LE: “But not for that crime. Also lawyers are supposed to have a duty to the Court, above and beyond their duty to their client. If there is a case which is clearly against them, they have to mention it to the Judge.”
Taxi driver: “Well, that makes a bit more sense to me than it did before. But the system still doesn’t seem that fair to me. I think crims get away with a lot.”
LE: “Hmm, if you actually had to send someone to gaol, I think that you’d find it very hard. Seriously. You’d agonise about it.”
Taxi driver: “Nah, I wouldn’t. I’d just lock ’em up and throw away the key!”
Later, I learnt not to tell taxi drivers that I was a lawyer, lest I get embroiled in that conversation again for the nth time.
I read an article in The Australian the other day which made me think about that conversation. It begins by describing Paul Sheehan’s new book, Girls Like You, which describes the trial of the notorious gang rapists, the K brothers.
This article makes various comments on the causes of crime about which I’m not qualified to comment one way or the other. I think the best comment I ever heard on what causes crime was by a barrister of my acquaintance:
“You get three kinds of client as a defence barrister: the mad, the bad and the sad. The mad ones are just nuts. The bad ones are bad to the bone and make the hair stand up on the back of your neck. There are some really bad people in this world. But it’s the sad ones, the ones who’ve been forced into it by circumstance or bad luck, they’re the ones you feel sorry for.”
I thought that was a very accurate comment. But what I want to focus on is the fact that the article identifies lawyers as the source of evil in the criminal justice system. The article claimed the following:
In many ways the chief villains in all this are the lawyers. They have grown to believe they, not society, own the legal system. They know better how justice should be meted out, invoking jargon, mystique and experience to defend their proprietorship. The lawyers’ conflict of interest is exposed by Sheehan’s astute observations. They protect their ownership, their belief systems and their careers against society’s legitimate demand that the law serve the interests of society, not a small cabal of lawyers. They have elevated protection of the interests of a minority – accused people – into a form of oppression of the majority: society at large.
It’s a difficult question. There must be a balance between ensuring defendants get fair treatment, and ensuring that victims are not traumatised and bullied. This issue is particularly vexed in rape and sexual assault cases, which are highly traumatic for the victims.
The article doesn’t explore the tension between the lawyer’s duty to his or her client and the lawyer’s duty to the Court (and to society as well). The client is the one who pays the lawyer’s bills…doesn’t this entitle the client to the best defence? Even if a successful defence may be against the interests of society as whole? I can see a defence lawyer arguing that it’s not for them to decide what the truth is, it’s for the jury (or judge), and that the defence lawyer is just doing his or her job. Nevertheless, I feel that it is appropriate to admit some moral qualms in some cases. I’m not sure how some lawyers can manage to sail on regardless. I think perhaps they look on cases as intellectual puzzles and remove the human factor. This is why I do not do criminal law: I am unable to do this.
It’s not easy, sometimes, being a lawyer. I think every lawyer (if they are honest with themselves) has been in a situation where he or she has not been entirely comfortable with representing a client, and in fact, lawyers may have been in situations where they are very uncomfortable with instructions. I guess that I saw my job as to not only represent the client, but try and make sure that the client made appropriate and sensible arguments. But I know there are other lawyers who disagree with my point of view – I had a heated argument one day with another lawyer who insisted that it is our duty to put any argument in the strongest manner possible, no matter how repugnant it may seem, because that is what we are being paid to do.
It’s times like this I query whether the adverserial system is suitable for prosecuting crimes. Setting defendant against victim in an aggressive manner just seems wrong. I start to wonder how well the civil law inquisitorial system works. Does anyone know about the inquisitorial system and criminal law? As with everything, I’m sure that it has flaws of its own. But hopefully it wouldn’t involve pitting a rapist against his victim.