Thought warehouse

So all my stuff got stolen from our car in the rockies. well, not everything - we still had our clothes and the car itself, but gone were most things a thief or stranger would consider valuable, including my laptop. I'm pretty much over the loss, but there were a lot of words on that box that I probably should have saved elsewhere...here, perhaps. Not that I want to dump my lumpy verbiage on a public forum per se, but at least if these words are stolen I'd still get to keep them. That said, here's a little essay on my struggles with and hopes for principled defence practice, rescued from the clutches of someone in likely similar circumstances to the folks I try to help.

This isn’t going to be a scholarly article on the finer points of criminal law. At less than a year in practice, I’m simply not competent to increase your appreciation of the delicacies of cross-examining prior inconsistent statements or how our courts might further peel open the Kienapple principle. I do, however, come to these pages with some burning ideas about justice, and how defence counsel in particular might facilitate better connections between the law’s lofty promise and its more labyrinthine processes.

After several months on the job, I know little more than it’s not an easy one, particularly for those who desire to practice coherently as well as competently. For me, whose job thus far is characterized by interactions with misguided youth and drifting adults, this means recognizing the inherently moral aspect of a profession that, sadly, often seems to suggest that such frankness is best left to one side lest it sully the legal issues. I remember one brusquely jovial defence lawyer who was brought in to our bar admission course to tell us how it was. “Don’t let ‘em talk about the offence!” he firmly snorted. “The more they inculpate themselves, the fewer avenues you’ll have to win the case.” Much better, in his well-practiced opinion, to simply read the disclosure, spot the possible weaknesses in the Crown’s evidence, and then tell the silenced client what stratagems seemed best to get him or her “off”. This approach, while acknowledging the bedrock principle that we lawyers cannot tell a lie (or knowingly let one be told), frankly made my stomach turn. This was not the noble calling I envisioned working for. Indeed it seemed little better than story-laundering, and I resolved that, even if strictly ethical, it would never be the right way for me to practice.

Having earned a slight bit of experience from which to look back on this vow, I have somewhat more understanding as to why that lawyer spoke the way he did, and why I still can’t do the same. I must stress here that, unquestionably, criminal defence counsel must act in their clients’ best interests, which includes raising every potential transgression of their rights, testing all the prosecution’s evidence, and above all, giving reasonable credence to clients’ narratives. As I’m often told by senior lawyers, it’s not our job to judge the case. But, perhaps with this zeal of staunch advocacy commanding our critical senses, we often forget to see the broader issues brought to us by those we serve, and listen to the stories they’re often yearning to tell. ‘Good’ criminal lawyering is often viewed as requiring strict client discipline. When such guidance becomes censorship, however, many of the deeper aims of the justice system, being those held out by the Criminal Code and common parlance as an ambitious blend of denouncing unlawful conduct, fostering accountability, and encouraging rehabilitation, necessarily suffer. So why do we still do it?

First, and perhaps most justifiable for those who work within them, the legal aid structures in most provinces afford lawyers little incentive to become involved in the messy underlying issues in our clients’ lives. With a scant handful of hours per legal aid certificate, there simply isn’t time, I hear many colleagues say, to sit down with some poor accused and dig up the root cause of their misbehaviour, let alone look for ways to help them transcend it. “Besides,” I’ve heard barked too many times, “we’re not social workers!” The most profitable way to make it in this business is by stacking the files up with factory efficiency, moving them on in batch adjournments until they eventually fall off the assembly line in the usual guilt-heavy blend of plea, withdrawal, or trial. Giving the time each case might ideally deserve would mean even less for tending to our own well-being, something many lawyers are woefully apt to let slide anyway.

Second, even though most criminal charges result in a guilty plea of some sort, our adversarial culture still prioritises winning. It’s the natural consequence of the competitive jousting that still predominates in schools, bars, and, er, bars, and I know better than to try to displace it. Achieving a ‘good’ result for a client, within the bounds that law and ethics draw for us, is no doubt valid cause for back-patting. However, the winning mentality can also lead to implicit or explicit stifling of our clients’ urge to tell their stories. Understandably, lawyers tend not to like it when a client discloses their culpability, especially to authority figures who likely don’t, no matter what they may say, care about much more than chalking up a conviction. But, once they’re in our offices and we’ve made it clear that we can’t lie for them, or ethically ignore what they choose to tell us about what they may have done, a carefully received and considered admission can have significant therapeutic benefits. Colloquially speaking, if a client wants to get something off their chest, why not let them? Moreover, with this fuller picture of what led to the charge, defence counsel are arguably in a better position, perhaps not to ‘win’, but to appropriately advise and guide clients towards just and helpful resolutions of their cases. Many if not most accused persons, in my slight experience, have some sense of justice in relation to their transgressions and treatment, and appreciate honesty and fair treatment. They may not feel they get it from police, Crown, or even courts, but caring, dedicated defence counsel can go some ways towards righting the imbalance (whether we can trust an increasingly law-and-order political climate to do more than retributively pounce on truth-telling is another difficulty, but one which I submit is better substantially engaged with than fearfully avoided).

Finally, I offer a related and overarching point, one which is easily disregarded but, in my view, inescapable for all those searching for answers to why the justice system so often fails to facilitate justice. This is simply that we lawyers are humans, working for other humans, who are as deserving co-participants in the process as any professional (indeed, the same can be said of crime victims, who are afforded even less representation by our current framework). Our clients, in spite of the gulfs of education, social standing, and economic stability that separate most of them from most of us, are, by and large, just as capable of moral reasoning and comprehension as anyone, even if their lived experience (including that gained in the justice system) has obscured it beneath selfishness and strategy. Silencing clients during those valuable moments when issues of accountability do arise does them a profound disservice, and, in the name of protecting their “best interests”, can effectively slam the door on any deeper engagement with the meaning of justice in their particular context. No one deserves to be shielded from their own conscience, and in my mind this is certainly not what lawyers or the legal system is meant to do.

Despite any air of conviction that may appear to waft from the above comments, at this stage of my career I am possessed of little in the way of answers to the confounding problem of how defence lawyers may be servants of a just society as well as individual clients. Certainly there are those, like the gladiator who addressed our bar class, who quite easily hold the view that lawyers do know what’s best for those they represent, and that this is precisely synonymous with unfettered legal wizardry. In many cases they are doubtlessly right, and do the job that both society and their clients expect of them. But nearly every day, over the course of these few months of practice, I have also met people, mostly young but some very ‘experienced’, who want to tell me what happened, who need their side of the story to be heard. Letting them do so has occasioned more opportunities for both my and their learning about that ineffable but compelling quality we call justice than magisterially shushing them up would ever have done. And it’s what ultimately is making me proud to be able to hold myself out – and up – as a lawyer.