Our modern criminal justice system gives those
of us who commit crimes, whether they’re misdemeanours or serial killings, a fair and speedy trial with all the
benefits of “due process of law”. This way of thinking
recognizes that the liberty of an individual is sacrosanct
and, in the end, the principle that gives us the power to
live a free life. In order to protect that liberty, our laws
make it so that an accuser must go far beyond the court
of public opinion; they must prove beyond a reasonable doubt that the defendant has committed a crime.
Some, however, think that this system is a waste
of time when it comes to terrorists like Abu Ghaith.
How can you justify defending a known killer who
has been a member of Al-Qaeda since the very beginning (with irrefutable evidence to boot)? The answer
of the defence lawyer must be this: In
defending a clearly guilty person, we
are enforcing the law. In a roundabout
way, our legal system doesn’t actually
seek to administer ‘justice’. Rather, the
law empowers judges and juries to take
away the liberty of individuals that they
believe to be guilty of a crime based on
the evidence. Bills of attainder, issued
by legislatures to unilaterally ‘name’ someone guilty,
have long been abolished. We now look at the legal
process to see whether a criminal is really guilty. The
defence lawyer, by fighting for the defendant’s interest,
exists to make sure that any determination of guilt or
innocence in law reflects reality. It’s the law that tells
them to explicitly act as a counter-weight to the prosecutor’s accusations in the courtroom, so that the court
can know whether to take away a defendant’s rights.
We lawyers like to say that defence lawyers are
an absolutely crucial cog in the machinery of justice.
There are lots reasons for this: A vain hope in the moral character of the courts, our need for a job, but most
of all, a reflection of the public’s expectations that all
of the accused will be heard fairly. Despite all of this,
however, the fact is that defence lawyers are not actually trying to ensure the delivery of any sort of justice.
They’re simply here to do everything they can do to try
to establish and maintain the innocence of their clients. By doing this, the defence lawyer contributes to
the legal process, regardless of the end result. So, if
someone has been found guilty, we can accurately say
that their defence lawyer has contributed to their own
conviction!
The fine line between justice and procedural demands of the law can be best seen in another example:
the acquittal of Casey Anthony, a mother that a majority of Americans believe to have killed her daughter,
Caylee. Let’s assume that, for argument’s sake, that Anthony did in fact murder Caylee. Her defence lawyer,
given the legal duty of fighting for Anthony’s innocence, would have fulfilled
it according to the requirements of the
law, but she would still be guilty on the
facts and would have gone free. In the
eyes of public opinion, this is a serious
“miscarriage of justice”. However, the
law’s position must be this: It was legally correct and, beyond that, it was right
that Anthony has been called innocent and been treated as such.
The defence lawyer’s reason for defending heinous criminals is that, while they might not owe their
guilty clients any moral duty, they owe a duty to the law
to make the legal process work. For any attorney to do
otherwise would be to let a defendant (guilty or not)
escape the rigours of due process and would render
the law unenforced.
“In defending
a clearly guilty
person, we are
enforcing the
law.”
Alexander is a second-year LLB Law student and an aspiring academic in political science. He writes on all things
polemically and digitally inclined, and can be found on
Twitter @ahkc