Is probably the number one question people I run into ask me upon finding out I work as a lawyer. The conversation usually goes like this:
Random Scrub: "How can you defend people you know to be guilty?"
Hazelnut: "Well that depends on the case, doesn't it."
Random Scrub: "Suppose you get given the case of a chap who admits to you that they droppes a pair of rohypnols in a girl's drink and raped her, and is charged with this. How can you defend such a person?" (Note: It's always either rape or murder or suchlike that they dredge up. Although I'm not in criminal law myself, I know how it works sort of, and also know that the majority of crimes my criminal colleagues deal with are robbery, ABH, benefit fraud, and PWITS. Murders and rapes are super rare and a cause of much excitement because we can get vast amounts of feeing from them. But I digress.)
Hazelnut: "Well, first things first - the fact they admitted to me they did it does not mean I have to advise them to plead guilty. Even if they told me they did it, they can still go not guilty if they want to as the prosecutor must still prove the Crown's case beyond a reasonable doubt, and as such he, as defendant, has the right to see and challenge all the prosecution evidence. I can't tell him to put in an affirmative defence in this situation as that's misleading the Court, but if he wants to go not guilty, that's a matter for him. I'd probably admit that there was sexual contact because no doubt there'll be endless forensic evidence, semen samples, and so forth. What I'd focus on is the consent angle because in such a situation as that, it'll be the complainant's word against the accused, and there's reasonable doubt all over that. But just to make sure, I'd make a huge song and dance about any delay in the rape occurring and her report to the Police of this, intimating that there's more than meets the eye. I wouldn't ask what colour underwear she was wearing that day because you get shouted at by the Judge for that now, but I would happily ask how she knew the Defendant, what the context of their meeting was - just how much alcohol had she imbibed, as that implies that she was so wasted she couldn't remember what happened and therefore calls her entire testimony into question, and so on and so forth. But I'd not be too willing to completely denigrate the girl because that loses you the sympathy of the Court. The trick is to just roll out a good long length of rope and let them hang themselves. And then, if that didn't work and the Judge didn't boot out the case after the prosecution evidence, I'd quickly try to carve it. If that didn't work, I'd have to just bite the bullet and tell him to plead guilty, and even then do the whole misery memoir thing. Worst case scenario - eight year sentence, and given the intricacies of time already served and time off for good behaviour, probably out in four. Though I mainly do civil litigation so don't quote me on any of this."
Random Scrub: *speechless*
Hazelnut: "Quite. Did I mention that the firm gets an hourly rate for this?"
At this point there reaction is usually either shocked silence or to denounce me as someting like "the foulest pondscum bastard that ever crawled out of Satan's horrific arsehole." I take these as compliments.
That's a practical answer to how I could defend someone I knew to be guilty. But I think what they're really getting at is this - how can I defend someone who I know to be guilty and still get to sleep at night? How can I do this on a moral level? Well, the answer is this - I don't get emotionally involved in my cases. I treat them all in isolation, and as an intellectual challenge, nothing more. I am able to do this because, firstly, you'll be a rubbish lawyer if you can't, as emotional incontinence causes you to lose sight of the evidence and the logic that will lead you to the outcome your client wants. I had a case where I was arguing for a tenant against what would otherwise be an unavoidable eviction on a very creative point of law about tenancy deposit protection. At the initial hearing the Judge was with us entirely and I was brash enough to answer snarky letters from the landlord's solicitors with equivalent snark of my own, knowing that I had a positive opinion from Counsel to back me up. Deep down I knew that my argument was just as artificial and against the grain as they were declaiming it as, but I still considered it completely logical and arguable and that I had as good a chance as any. Despite their appealing to my better nature to give up, I persisted to a final hearing, where we lost simply because the same Judge had changed her mind entirely in the intervening months. My attitude was, oh well, we tried. It did not bother me one iota that the landlord had been stuffed out of over a thousand pounds (the reason he wanted her out was because she wouldn't accept a rent increase that all the other tenants had accepted, and the tenancy agreement provided for no annual rent review or anything like that).
You see, while at university I was thinking that law was all about truth, justice, and sticking it to The Man, when I entered law college and did my Legal Practice Course I realised it wasn't. Law is not about finding out the truth, or about justice. It's about dispute resolution. One person sues another for something - it's because one person feels they were wronged by another and wants redress. The judiciary is there as an avenue to discern whether redress is due and, if so, in what manner. It's not there to allow white knighting or proving of points. Even criminal law is still about dispute resolution, because when someone commits a crime, the argument runs, they've wronged society and society is after redress from them, for example, by putting them somewhere (prison) where they cannot do any further damage. However, justice versus dispute resolution is not something I've time or capacity to argue out right now, so I'll quit here.
The reason for this is because a court cannot know the truth is definitively the truth. This is because there is no way of physically forcing someone to be truthful. Torture does not work. Sodium thiopental does not work. The best it can do is insist that everyone is truthful. This is why perjury and contempt of Court exists. Historically the idea of evidence on oath was that, then being a more religious era, one would not utter knowing falsehood having sworn an oath to God that one would not because one had then imperilled one's immortal soul, which also acted as an incentive not to lie to the Court. It used to be believed, back in the day, that trial by combat was a way of finding out who was in the right, as God would no doubt give victory to the righteous, until people realised that this wasn't necessarily the case. This is why we have compromises such as the presumption of innocence and burden of proof and standard of proof. His Honour Judge Floggem wasn't there, he can't know what happened, he has to make a judgement based on what is before him. Hence, dispute resolution.
People might not like the resolution that's been come to. Guilty people get let off. Innocent people get convicted. This is why there's then a whole chain of appeal courts further up, for instance, if new and compelling evidence comes to light. This is why records are made of every case, so that if someone gets away with it one time, there's possibly a chance they might not if they do the same thing again. But at the end of the day you'll never be perfect. If the evidence isn't there, then I'm sorry, you're out of luck. As HHJ Seymour said in the case of RC Residuals Ltd -v- Linton Fuel Oils, "that is life and life is tough."
And that is how I could get to sleep at night knowing that I have helped someone get away with murder.
(IRON NODER 2011, 9/30)