The right to defend
An accused is entitled to be defended by a lawyer of his choice.
THE recent Banting murders have received unprecedented media coverage at a stage where investigations are still ongoing and the suspects detained have not even been charged.
In fact, the Attorney-General has expressed concern over the way events have been dramatised. He has advised all those involved to stick to the facts and cautioned that reports in the media quoting various parties could jeopardise the case.
Whilst what has so far emerged is horrifying, the fact remains that when a charge is eventually formulated, it will have to be proven in accordance with the legal requirements that constitute the law.
Some members of the public may want to believe that it is obvious as to who was responsible. A reader asked whether any lawyer would want to represent such person or persons and if so, is it right to do so?
I am inclined to take the view that our reader and those who think like him constitute a tiny percentage of the general public. Others would want to guess or have their own suspicions as to who did what. But the majority of people would wait for the charges to be formulated and for the trial in court to decide who is guilty and how such person ought to be punished.
However, it is not uncommon to come across members of the public who have such thoughts in their mind, like our reader. Should a lawyer represent a person whom he knows is involved in the activity which is the subject of the charge?
Many members of the public fail to appreciate the role of a defence counsel in a criminal matter. Some may mock the lawyer for offering to represent an accused despite prevailing sentiments. But the lawyer does no wrong. In fact, he is only performing his duties.
There is nothing wrong about a lawyer representing an accused even though many people or a substantial group of people may believe that the accused did what he is charged for, at least in a general way. After all, an accused is presumed to be innocent until he is proven guilty.
As said by William Fortescue, an English jurist in The King vs Chancellor: “The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence.
How the law has developed is also narrated by Benner Van Syckel, American jurist in Patterson vs State. “In the early days of English criminal jurisprudence, when even a trifling larcency was punishable with death, there was reason why the judicial mind should exhaust its ingenuity in aid of the defence, and seize upon every technicality to avert from the prisoner a punishment so disproportionate to his crime. The reason for resorting to mere technicality to enable the criminal to evade the sanctions of the law no longer exists, and the practice to which exists, and the practice to which that reason led should therefore cease in.”
Of course, if a lawyer has in his own mind decided or has concluded that his client actually is guilty, then it becomes an ethical issue as to whether he should continue to defend. But that is a different matter.
The lawyer is, after all, one part of the institution and the machinery that exists to produce an outcome in such cases so that justice is the end result. He has to play his role to produce this result.
Our system creates an arena in which the prosecution and the defence battle out for the former to make out a case and for the latter that it is not made on. In between and above the two, sits the judge who makes the decision after having heard both sides of the case. This involves the evidence and arguments on the law.
The position of the lawyer is from one point of view described by Jay Goldberg, an American lawyer writing in the New York Times some 50 years ago. He said: “I am a mercenary. A person who is accused of something comes into my office and he wants me to be his sword, he wants me to protect his rights. I must, I accept his case, close my eyes to the needs of society and I do what I can to protect him within legal ethics, without any regard for society’s needs or anyone else’s needs. The fact is that society gains most of all by seeing to it that the rule of law applies to all. It is not tested with the law-abiding middle class, but with the people who need it most to.”
In the same way, it is the duty of the prosecution to present its case. The burden is on the prosecution. As said by Sir Giles Rooke, an English jurist in Almgill vs Pierson: “Those who make the attack ought to be very well prepared to support it.”
Of course, the judge is there to ensure that justice is done. This he can do by exercising his discretion to obtain clarification where this is required. It has often been said that “a judge rarely performs his functions adequately unless the case before him is adequately presented.”
Of course, judges carry a heavy burden when making decisions in all matters. And this is particularly so in a criminal trial where the consequences are unlimited.
Of course, an ideal outcome is based on the presumption that all parties are equally competent and carry out their roles well. On the assumption that this is done, it is expected that an outcome or decision will be made that reflects that justice is done.
Of course, in real life a perfect situation does not always exist and this may cause injustice as is perceived to have happened in some cases. Thus if there are shortcomings on the part of the prosecution in presenting the evidence that is required, an otherwise guilty person may be acquitted. On the other hand, if there is a failure on the part of the defence to detect shortcomings in the prosecution case or present evidence that would rebut the prosecution case, a person otherwise entitled to acquittal may be convicted and this would be injustice to him.
However, in the case of our own country, we need to strive and hope that the system operates at the optimum level on all accounts so that justice may prevail.