Saturday, February 28, 2009

defending the defender

Forgive the imperfect analogy, but sometimes I imagine that I’m a doctor. Except that instead of an infrastructure designed to let me deliver the best care, my sickest patients are kept sequestered in some barred, stone-walled building with hundreds of other infectious individuals, and my rounds, far from being facilitated by a team of nurses and technicians, are impeded by a tense officiousness that allows only the briefest checkups in cramped and hounded quarters. My diagnoses and prescriptions must be filtered through often conflicting sieves of information, on one side designed to make my patient appear as ill as possible, on the other, from the horse himself, that he is completely well. It is within such a strange hospital that I hope to guide someone to healing.

But of course this is not really about sickness, at least not according to our country’s dominant interpretations of what us justice fools are up to. And if anything, in the paradigm that pops up on message boards and media reports, it’s criminal defence lawyers who are infecting the social body with our diseased ideas about the rights of the unworthy.


There’s a question all of us are asked, and, truth be told, must ask ourselves: how can you do this? What’s commonly conveyed, I think, is the flat repugnance around representing those who’ve done heinous, even evil things. And, viewed so starkly, how could this really be a good? At most, we might explain ourselves by claiming it’s a duty, and necessary to the yin-yang structure we’ve set up. Without us, we rightly say, voices are drowned, rights snuffed out, the frail or unpopular consigned to the vicissitudes of those who have neither obligation nor inclination to give a damn. The citizen is most at risk, we know, when suspect of doing something wrong. All this is fine, and deflects some of the blame, the glowering scepticism of those who believe in the black and white world that so often cameos as justice. But it’s not nearly enough to be proud, for criminal lawyers to shake off the cynicism and self-deception that we tend to pass around like a winter’s cold. So I’ve been hunting for a way to articulate why this calling ain’t so bad, and in fact deepens my sense of the human’s gritty beauty. Somehow, even though the suspension of (even accurate) judgment is absolutely necessary, there’s a nub of graceful realism to this profession. Simply put, it’s our job to emphatically not feed the dichromatic illusions that propel prosecutorial zeal, and find their logical conclusions in immoderate, un-nuanced punishment. I’ve been in law enforcement – I know the little thrills and back pats that come with catching the act, the law-break that allows authority to unhitch its belt in the expectation of a righteous walloping. I know it feels damn good to be on the right side of the line, to employ and justify law’s tools – cuffs, badge, bars, book – against the wrong. Done wisely and well, it’s a crucial role in the play of social regulation. Yet we see, again and again, how the power to punish becomes the opportunity to oppress, to be blinded to the person in the gleam of the blame.

I’m not presuming that defenders know (much less tell) the true story of any character or crime, not at all. Sometimes, in the narrow service of our clients’ needs, we do exactly what we’re ridiculed for – chip away at probable logic, re-align a judge’s gaze, suggest and wedge open precious cracks of doubt in a case’s foundation. But, much more often, good representatives try to re-contour the flattened landscape of bad deeds and worse boys. If we’re allowed, by our clients and the law, and if we choose the effort, we might parse those black and whites into an honest spectrum of grey. It is, I suggest, a very worthwhile task; think about it the next time your whole life is repackaged in an 8’ x 10’ cell, your story reduced to spare misfeasance (I don’t suggest it happens to you much). But is this what “the people” want?

There is a certain strand of thought – ascendant in America, becoming so up here, that the mess-around with subtleties is a dangerous indulgence, that all justice requires is the coupling of proven crime to predictable consequence. It becomes irrelevant, invisible, that you had such-and-such an upbringing or suffer from this-or-that insufficiency. The question ‘why’, so integral to other realms of truth, ought to be expunged from a court’s consideration. Such a lip-smacking, simplifying dream, don’t you think? Let no novels be written in courtrooms. Spare no poetry for the convicted. Some day law, perhaps, will be no less complex than arithmetic. Perhaps the black and white world is returning.

1 comment:

Benjamin said...

NO!
I for one
Stand for the compassion of all!
and
Each body, each person, is a being
and
may all beings be responsible and free
to experience the beauty
that is
that is this life.

love you simon
is the sun shining these days?

-ben