Disgusting lawyers
Friday, January 04, 2013
Indian gang rape: suspects charged with rape and murder - Telegraph.
The rape and murder of a 23 year old student in India is a hard case that risks making a lot of bad law. Particularly in a society where the legal profession has lost its ethical way. I could not believe it when I read in the linked article from the Daily Telegraph;
Lawyers at the court in New Delhi told AFP that they would not defend the suspects, meaning that the government would have to appoint advocates for what will be a fast-tracked trial. "We have decided that no lawyer will stand up to defend the rape accused, as it would be immoral to defend the case," Sanjay Kumar, a lawyer and member of the Saket District Bar Council, told AFP.
I was a criminal defence lawyer, briefly, at the beginning of my career. I enjoyed the actual advocacy but did not have the temperament for other aspects of the job. While I was doing it though, I did my best for my clients, regardless of my personal feelings, because that was my duty. For all the sneering I encountered from less-enlightened policemen and other bar room "thinkers" I met during that time, it was - and is - an honourable and necessary task. When, that is, it is performed in accordance with the profession's ethics.
I am disgusted that some of my learned colleagues at the Indian Bar should have refused to defend the accused men in this case. It is worrying if the most populous Common Law jurisdiction in the world has so far forgotten the principle of the presumption of innnocence. I well understand that the practice of law is a business like others in most respects. The advocates in question are no doubt afraid of being attacked by the uneducated mob for "siding" with men accused of a vicious and wicked crime. They no doubt fear losing future business. Perhaps they think their foul, populist declaration will win them goodwill.
However lawyers are not mere mercenaries but samurai. They fight for those who pay them, regardless of their own view of the issues, but they fight according to their own code. If they are not prepared to adhere to the profession's version of bushido, then a career in some other field beckons. Frankly, any employers or customers in that new field should worry. Men of such low principles will probably always put their self-interest before that of those who pay them.
Shame on you, Sanjay Kumar, and shame on the so-called lawyers you represent. You are supposed to serve justice, not the mob. If this report is true you should all be struck off.
I am not saying being scared _excuses_ them from doing their job, just that is why they want to get out of doing it this time round. To me it seems immoral to take the money for doing the job in the good times and not in the bad.
You might not have a moment of ethical discomfort and I think it is because you are honourable and honest, but I am sure there are some who didn’t have a moment of ethical discomfort because they... just never had them.
Posted by: Moggsy | Monday, January 07, 2013 at 01:13 PM
I can also see why a coward is a coward, but that doesn't excuse it. The job pays well but it comes with occasional big responsibilities and a duty to serve justice. These Indian guys are a disgrace and I was pleased to see the head of the profession in Malaysia say as much in public.
The immoral behaviour you describe is also unethical. I was trained (by one of the best, sadly recently deceased) NEVER to suggest a defence. He taught me my job was to present the client's own story, however implausible, as best I could and that if I improved it I became complicit. He also pointed out that if I was dumb enough to be tempted, many of the clients were bent enough not only not to be grateful but to base their appeal upon the fact that their "brief" had suggested a duff defence.
We didn't pour scorn on a ludicrous defence, but we did advise the client how it would be attacked by the prosecution. If s/he then admitted guilt, we had to enter a guilty plea and mitigate.
I encountered some horrible crimes in my brief time at this game, but I never had a moment's ethical discomfort. In most of the cases I took part in, justice was - as far as I could tell - done - at least in terms of the verdict. Sentencing is quite another matter and has become far worse since under government pressure. I am sure there are bad uns amongst defence solicitors and barristers. They are drawn from the warped material of the human race. I never met one. I agree with everything Inspector Gadget says about sentencing at his splendid blog, and almost nothing he says about defence lawyers.
Posted by: Tom | Monday, January 07, 2013 at 09:32 AM
I can see why the lawyers might have been frightened of representing those guys, Just for what the public might do to them.
I am not sure why it would be “immoral” to represent those defendants. Anglo law used to be about innocent until proved guilty and Indian law comes from British law. Even if they admit the crime and tell their lawyer they can still speak for them tho not defend a not guilty plea.
“When, that is, it is performed in accordance with the profession's ethics”
The lawyers who I think are scumbags are the ones who are oh so careful to stop a client admitting to them a crime and then help tailor a defense to fit the public facts. That is immoral but it does not put off some.
Posted by: Moggsy | Monday, January 07, 2013 at 08:43 AM
Not merely not mercenary but actually noble. Bear in mind everyone who does it is qualified to do (as I did) much more remunerative work. We should be grateful to those noble souls who choose it.
Posted by: Tom | Monday, January 07, 2013 at 01:23 AM
Thanks for the clarification Mr FB.
I do understand the need for defence councel and I think on balance our adversarial trials are as good a way as any of stumbling across the truth.
But the idea that defending someone you think is guilty is not mercenary... nah, sorry. I'm sure every mercenary does similar ethical gymnastics based on the greater good and the perceived legitimacy of the state or warlord who employs them.
Posted by: Diogenes | Monday, January 07, 2013 at 12:21 AM
You serve your clients in a state run courts system characteristically riddled with inefficiency. There were just two appointments, morning and afternoon, and you had to turn up and wait with your client. Often, they never got round to you and you had to come back again. So you spent hours trying either to work on other cases in uncomfortable conditions or making conversation with often less than interesting people. Your income depended also on the state as many clients were on legal aid. The time out of court involved visiting state run gaols and hanging about while public employees took their time to deliver clients to you. I counted the doors locked behind me once at Lincoln Prison on my way to interview a client. 16. I am not claustrophobic but found it disturbing
Posted by: Tom | Sunday, January 06, 2013 at 11:04 AM
I was a criminal defence lawyer, briefly, at the beginning of my career. I enjoyed the actual advocacy but did not have the temperament for other aspects of the job.
You have me intrigued about the second sentence, Tom.
Posted by: james higham | Sunday, January 06, 2013 at 10:42 AM
Quite so. Even in my own short career I was surprised to find a client who seemed guilty to me was not.
Posted by: Tom | Sunday, January 06, 2013 at 09:59 AM
Mr Diogenes addresses the point from the wrong angle.
When defending in a criminal case you might be utterly convinced that the evidence against your client is overwhelming. But you are not there to reach a view of guilt or innocence, that is the task of the jury.
The only time you know your client is guilty is when he tells you so. In truth, even then you do not know it, all you know is that your client has told you he "did it". You are instructed to advance a defence for him if you can and you cannot advance a defence when he tells you he has no defence.
Your own opinion of the evidence is completely irrelevant to your duty to advance such defence as you can on behalf of someone who tells you he did not commit the offence with which he is charged.
Mr Diogenes assumes a defence barrister should not act in a case if his personal opinion is that the evidence against his client will be enough to satisfy a jury of guilt beyond reasonable doubt. That is not the position and nor should it be.
I defy anyone to find an experienced criminal lawyer who has not been surprised by a "hopeless" defence turning into an obvious acquittal once the written evidence was examined in detail by cross-examination.
Posted by: FatBigot | Sunday, January 06, 2013 at 08:08 AM
This is what doesn't compute for me. In every jury trial, where a conviction is secured, the jury convicts beyond reasonable doubt on evidence that failed to convince the defence barrister. Do you have any bewigged friends who would like to buy shares in my mustard mine?
Posted by: Diogenes | Sunday, January 06, 2013 at 02:13 AM
If you know he's guilty you can't enter a not guilty plea for him. If he insists, you have to stop acting. He can appoint another lawyer who doesn't know.
Posted by: Tom | Saturday, January 05, 2013 at 12:54 AM
Perhaps Tom you could clarify for us the professional ethics in question.
If I knew beyond reasonable doubt that my client committed the crime in question yet I was aware of a loophole or angle which would cast sufficient doubt in the minds of a jury to see them acquitted, what would my hypothetical barrister self be obliged to do?
Posted by: Diogenes | Saturday, January 05, 2013 at 12:50 AM
I'm uncomfortable denying defendants the vigorous defence that I would want for myself, were I to be charged with a crime.
Posted by: James Strong | Friday, January 04, 2013 at 07:02 PM
I look at it this way: I'm uncomfortable depriving a person of their liberty unless they have first had the benefit of a trial and a determined, competent defense. Defense lawyers, who do their job properly, are essential to the business of punishing the wicked.
Posted by: MisterDamage | Friday, January 04, 2013 at 03:30 PM
Whilst understanding and agreeing with the point you make, I'm not sure that the comparison of a professionals duty with the morality and ethics of the Japanese military class is entirely appropriate or helpful. I seem to recall a problem with those around the 1930's and 40's.......
In any event, our own jurisdiction seems to have difficulty with the concept of whether an accused will receive a fair trial. The trial of the Stephen Lawrence accused, after their public and universal vilification, springs readily to mind.I know this is not a popular point of view but....
Posted by: MickC | Friday, January 04, 2013 at 01:52 PM