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Sunday, 23 November 2008

In Defence of the Defence

Michael Laws has written a strong piece in the Sunday Star times on child abuse which pulls no punches and calls for a return of the death penalty. Most of what he says is spot on (well there is a bit of the 'someone else should be doing something' going on) but this statement is so far off it warrants a response:

... stop buying the liberal excuses. Every blame-shifter, every apologist, every politically correct naysayer is, in reality, part of the problem. They are the pimps of abuse - they condone ill-treatment because they make excuses for the perpetrator.

And I include defence lawyers in that retinue because they whore their intelligence to protect the evildoers. As a rule, criminal defence lawyers have no soul. ... [emphasis added]

Now maybe I took issue with this because of my vocation, but 'defence lawyers whore their intelligence?' Is Laws arguing against due process? Should every accused automatically be assigned an in-intelligent lawyer? Perhaps we should forget about a trial altogether?

Further, 'defence lawyers have no soul?' Is Laws aguing against the presumption of innocence? If the court finds the accused not guilty then we must assume the defence lawyers were right.

What's next? A complete removal of autrefois acquit and autrefois convict (commonly dubbed "double jeopardy") in cases where the public 'know' the court got it wrong?

The defence laywer's job is to present their client's case. The state's job is to present the evidence that the accused is guilty. If the public is to have faith in the integrity of the justice system we should hope that both sides are highly skilled; the standard of evidence must be so high that the court, and the public, are left beyond any reasonable doubt of the accused's guilt, or lack thereof; expecially if we are to consider re-introducing the death penalty.

If the state is competent, and it is patently obvious the accused did it, then the most intelligent defence lawyer in the world will not be able to combat this. When the state bungles a case the last thing we should be doing is booing and hissing at the defence, do we really want to drop the standards and make it easy for the state to get a prosecution? This will give the state far too much power and society far too much uncertainty in the justice system.

We have to remember, as FE Smith points out in the comments section here, that it is not the defence lawyers who kill the Nia's of this world and we must put our faith in the presumption of innocence and in due process because the alternative is worse.

As I have previously argued, the presumption of innocence means, inevitably, that sometimes the guilty will walk and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict, and this is where the intelligent defence lawyer is necessary, because it is generally deemed worse to send an innocent person to jail, or give them a lethal injection, than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that's that. Demonising the defence lawyer because, despite the court's assessment, the public "know" this person is guilty (good ol' trial by media) is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state, with its vast resources, to hound and harass the innocent.

None of us like the idea that the someone will not be held to account when a child is abused to death but we must be careful we are not calling for anyone to be held to account; what we want is the guilty to be held to account and for that important distinction to be drawn we need good defence lawyers.


  1. Defence lawyers protect evildoers from the overwhelming power of the state, and if Laws' beliefs are taken to their logical conclusion we will have summary trials and executions.

    Did you spot Tapu Misa advocating compulsory sterilisation as one way of dealing with child abuse?

  2. A good post, Madeleine.

    No KP, you are not correct: as Madeleine rightly pointed out "the defence laywer's job is to present their client's case", not to protect evildoers. We do it on instructions and according to very strict rules of ethics. What you should have said is that defence lawyers, and the rules we uphold, are there to protect all of us from the overwhelming power of the State. When the State has unfettered and unchallenged power then tyranny exists. Our predecessors in the justice system recognised this and developed rules to protect us from that power. But you are right that if Mr Laws' positions are taken to their logical conclusion we will not have the ability to defend cases at all. Or you will have to do it yourself, while the prosecution can use the best lawyers they can find. Now that is a scary thought.


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