The dichotomy of defending criminals

BY JASON McKAY

Sunday, November 18, 2018

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I came upon a case recently of a defence lawyer named Geir Lippestad, who was threatened and had to remove his child from school because of his decision to defend a Norwegian neo-Nazi terrorist, Anders Behring Breivik, who had killed 77 people in an attack in 2011.

The threatening of this defence attorney is by no means unique or isolated. Many attorneys in the southern United States were threatened when they represented blacks in the 1950s and 60s, especially if they refused to conduct their duties to facilitate the kangaroo trials masqueraded as a justice system.

In Jamaica we don't really have overt hostility like that, but it is present in a latent form. I have often heard people say things like 'How can he defend a man like that?', or 'They must remember they have wives and daughters'. The latter comment is common when sex offenders are on trial.

As a human being, I allow my hatred of rapists and murderers to influence my judgement. However, as a pragmatist, I have to be practical.

The reality is that the defence attorney has two choices: he either represents the accused or he doesn't. If he chooses not to and everybody else does too, then the case cannot be heard.

This actually became an issue with the Lyn murders in Mandeville, where an elderly couple was killed in 2006 and no attorney in that geography wished to take the case. The end result of this type of stand could very well be the acquittal of the accused.

If the attorney chooses to take the case then he or she is vilified. My question is: What the hell do you want them to do?

Do you want them to take the case and do a lousy job?

Ridiculous.

A fair court system must include fierce advocacy and professionalism. It is important, not because of the 5,000 it will acquit, but because of the five innocent it will save from wrongful conviction.

There is an unfortunate history of countries so vile that attorneys have not even tried or dared to mount passionate defences. The Soviet Union, Nazi Germany and even China have allowed terrible injustices because of an imbalanced court system. Is this what we really want?

I can recall the case of Diana Smith, the lmmaculate Conception High School girl who was raped and killed in 1983, and the character slaughter that the defence attorneys were subjected to in living rooms across uptown. Yet, it is now looked upon as a master defence and a stand for justice in the face of trial by rumour.

Some of our most outstanding Jamaicans were defence lawyers. Norman Manley was famous for defending accused persons long before he rescued us from the British.

Dudley Thompson may get a hard time for his 1970s activities as a politician, but remember that he defended Jomo Kenyatta.

For those who are too young to remember, Kenyatta was Africa's symbolic freedom fighter, long before Nelson Mandela was the famous icon he now is.

It is the same defence attorneys — who are subjected to criticism — who stand between INDECOM and our police officers. We rely on the same passion for our police when they are charged for carrying out their duties and not dropping the gun and running (I believe the term is called tactically retreating).

Always remember to focus on the innocent, who may be your son or daughter and consider that there is a system wherein justice is not determined on charge, but on completion of a trial. This system can only exist if it operates how it was designed to — by the debate of facts and the presentation of evidence and, most importantly, by everyone doing their job to the best of their ability.

Many an inmate of prisons in Siberia would have wished for a system such as ours. This is not to say that attorneys must forget their obligation to fair play. This includes the despicable acts of putting off cases so that witnesses will get fed up, describing witnesses to accused persons who turn up at video identification parades, or breaching regulations regarding acceptance of cash amounts above the legal limit.

What I will close in saying is that do not take our system for granted; it is one of the fairest in a world where most countries have kangaroo courts. This occurred on the backs of men and women who fought for change, equality and independence.

I am not old, but I can remember when countries like South Africa and Rhodesia (now Zimbabwe) conducted court on laws based on colour. We are 90 miles away from a court system that allows for indefinite detention on political grounds. Florida has only executed one white man for the murder of a black man, but 18 black men have been executed for the murder of white men, and the list goes on.

The system we enjoy and the power and equality the accused feels in conflict with his accuser exists because the defence attorney is free to engage in verbal conflict. What you do not want is a system where defence counsel is intimidated or not trying. Because the worst crime is not watching a guilty man go free, it is watching an innocent man go to prison.

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