How Can you Defend Those People? and Other Observations from the Frontlines of Defending in the Criminal CourtsI have been thinking this week about whether I would defend anyone. Take for example Don Cherry. He is a clown, a loudmouth, a bigot and a homophobe. He refers to “you people.” I don’t know who he is talking about. I suspect it includes the people we represent. If he was here I would tell him that every time we have a wave of immigrants, the IQ goes up in the country. Unfortunately he is dragging down the national IQ. Maybe too many pucks to the head. Anyway, as a criminal lawyer, I’d be obliged to defend him when he gets caught. I’d cross my fingers he doesn’t talk about his views on immigration in a client meeting. My topic today is How can you defend those people? Most of us are so sick of the question: How can you defend those people? that we stopped thinking about a serious answer to the question. If you are asked the question at a dinner party, you likely roll your eyes and pour a drink, pop a gummie or check your watch to see if the babysitter needs to be picked up. It’s an irritating question because it shows the questioner did not fare well in Grade 10 civics, if they showed up at all for class. Some people ask because they think your choice to defend the person signifies approval of the crime with which they are charged and so reflects directly on you. In other words, How can you defend those people? is code for How can you sleep at night? So irritating is this question I am going to spend the next 30 minutes discussing it. Like all of you I have squandered my existence being a courtroom lawyer. I’ve asked myself more than once, what makes you want to be the most unpopular person in a room, asking awkward questions, resisting the prosecutor beside you and –sometimes, even-- the prosecutor on the bench, while losing 93% of the time? The answer is a mystery. There is no single answer but we are a species. Therefore if defence counsel is a dog, there is more than one breed. Some lawyers like the underdog aspect of being defense counsel. Many of you are in the room. This species, of whom I count myself as one, do not seek out sure-fire winning cases. The opposite. We look for losers, hope the client has confessed to a crime witnessed by a dozen people so the climb is that much more Sisyphean. Also more pleasurable for the lawyer, even if not the client. Lawyers who gravitate towards the underdog tend to see the world, correctly in my view, as an extended game of poker. The Crown is the house. We are never the house. We are the guy in the Hawaiian shirt who flies into Vegas for the weekend to lose at everything and keeps coming back for more. Defence counsel who enjoy these cases develop the skill of dealing with bad facts. In some ways, it’s the highest form of advocacy. The hardest thing to do when you have an underdog case is to deal with your facts. Good advocates deal with bad facts in a way that’s plausible to decision-makers who were not born into poverty, the bad chemicals of mental health disorders, drug addiction, and chaotic childhoods. All underdogs have their own little trick. I have a rule in these cases which I call worst fact candour. As soon as I’m hired I imagine the worst outcome and work backwards. Having been raised as a Catholic, I view life itself from the perspective of 3 rules: catastrophe, guilt and the rule against masturbation. Contemplating catastrophe and the worst outcome is second nature. Once I’ve done that, the next step is to decide how quickly I’m going to tell the judge about the worst facts. I don’t want to hide from the worst facts. Social psychologists confirm that people who admit their weaknesses have more credibility with the listener. I take it as a given that you need worst fact candour to succeed as a criminal lawyer. I’m now going to tell you something that’s going to make you laugh. When a new case comes in, I assume I’m going to win it. I never ever think I’m going to lose. I start out every case by suspending my own disbelief. This happy state of dreaminess, which preceded legalization, helps keep me going. It prevents me from viewing my job as an advocate with cynicism. And it leaves my imagination open to approaches that I might otherwise overlook. I never concede there is no viable defence theory. I just accept it is harder to see in some cases. I have a friend who calls this the “So what?” defence. He means that when his client is caught on video punching the victim and he confessed that to the police and the victim’s blood was on his shirt my friend says to the jury, “so what?” Was the Crown Attorney there? Did she see my client do it? The fun part of this type of litigation is that there is nowhere to go but up. Actually what really happens is not just so what but “yes, but.” Yes my client did that but that’s not the point. I love when a good lawyer does that and does it effectively. It’s not a gimmick. It’s a reframing of the issues. I have to digress to mention a subspecies of the underdog. He is dishonest and demented. Rudy Giuliani was formerly a respected prosecutor but now he has only one client, a fraudster real estate guy, who stopped paying taxes and became President. Rudy is acting for free because he believes in his client. So far, he sounds like us. This dog deals with bad facts by admitting them but insisting there was no collusion, he never tried to bribe the Ukraine, he tried to bribe the Ukraine, or the whole thing is a witch hunt. This subspecies is not one of us and has no place in the Sopinka Lecture. He needs a tight-fitting leash and collar. Back to our subject. There are also the lawyers, the pitbull of our species, maybe some of you are in the room, who like being oppositional and anti-authoritarian. This lawyer snarls a lot. The opportunity to be a professional challenger of authority and get paid for it is fun. Opposing people with power is a big part of this lawyer’s program. You know you are this kind of lawyer if you resent the trial co-ordinator who experiences administrative ecstasy when she can’t give you 3 consecutive days for a trial for many many months. Anyway for the lawyer who lives to question authority and those who wield it, a not guilty plea is a good outlet. This species of defence counsel will bite your hand if you are too quick to judge their client. When the police focus on a single suspect the story becomes about heroes and villains. In case you just came in, we are on the side of the villains … always. Criminal lawyers know that this is an opportunity and success often lies in disrupting the single villain narrative. When the prosecutor sets out to prove that there is only a single villain, your job is easier. I was recently in a prospective client meeting with a police officer whose integrity was wrongfully questioned and she explained to me that the allegation which brought her to me came up in a case that was going just fine, from her point of view, when it suddenly took the “O.J. turn.” I had to catch myself, not wanting to look stupid, before I inquired, “you mean like the defence lawyer turned the spotlight on the police investigation instead of his client?” “A classic move,” she replied. I never thought of this as the “O.J. turn” but a good lawyer, defining or redefining the issue. She was a police officer who maybe met too many lawyers who defeated the single villain narrative. In fact, on the subject of O.J., (this speech is not linear, I admit) I want to make a small point about that case: During the trial, the media was convinced the LAPD arrested the right guy. They invented a contest, guilty celebrity & his dream team v. honest prosecutors and the police. I don’t know the origin of the phrase “dream team” but it was used as a slur in O.J.’s trial to cuss out the fact that he had more good lawyers than a Black man should have. I think the people who are frustrated with the outcome in that case are pissed off because O.J. stole the program from rich white guys. He got the best defence money can buy which is usually a purchase reserved for a small group of elite clients that does not include Black men charged with murdering their wife. What does it say about the thousands of other defendants forced to settle for overworked, under-resourced public defenders? Are the commentators upset by that? When people ask you at a dinner party “how can you defend those people?” the second question is almost certainly, “what about O.J. – he was obviously guilty but he got the best defence money can buy so he got off, right?” The final breed I want to mention is the row against the tide lawyer. This is probably a Portuguese water dog. These are lawyers who do cases that are flat out unpopular, because of the facts, the subject matter or the social times. Child pornography, terrorism and sex assault come to mind. Some defence counsel have the courage and in fact like to be unpopular. This is a great trait of the people in this room. It is particularly important in 2019. In fact it is impossible in 2019 to discuss unpopular advocates without talking about our important role in defending people charged with sexual offences. As everyone knows sex assault prosecutions were stained by myths and stereotypes for decades. Parliament and the courts worked hard to get them out. Criminal lawyers support the changes because we hate sexism in our courtrooms. But something else has happened. We have reached the point where it is received wisdom that the pervasive social problems of sexual assault and sexual harassment can be solved by the criminal courts. One by-product of this development is that real people, our clients, are in the middle of the cross-fire. No one is entitled to a particular verdict in the criminal courts but you would not know that from listening to the commentators. I reject the idea, as a civil libertarian and citizen, that the sins of the patriarchy can be solved by convicting and jailing more people, regardless of the evidence in individual cases. We are an evidence-based system. The new laws that have gone from excluding irrelevant evidence about sexual history to preventing the defense from telling the full story and asking potentially relevant questions. The new laws exclude evidence of relationships and turn the presumption of innocence upside down by forcing the defendant to produce discovery before trial. The new laws create a vision of ideal sex in which there is no drinking or mistaken touching or false starts or confusion about how things should unfold. So much for teen sex. It is important for defence counsel to keep the focus more than ever. That’s it for the dog metaphor. In addition to not understanding why we are drawn to defending people charged with unpalatable acts, the public often doesn’t understand the criminal process and what it is meant to do. I could give you several examples but just three small ones will make my point. Non-lawyers think the point of a trial is to decide what happened. Defence advocates don’t see it like that. For this reason we reject the idea, repeated often, that a trial is a search for the truth. The trial is not a search for the truth as defined by the police or the prosecutor. It is a search for what can be proved. In fact, if we had unalloyed search for the truth, we would not have a thing called solicitor client privilege. We would relax hearsay rules. It is a misunderstanding of our system to say we are in a search for the truth. The reason we specifically are in the courtroom is not to help in the search for the truth but instead to test what can be proved using admissible evidence. Viewed that way, a good lawyer can steer the ship in any direction that the evidence permits. Now imagine for a minute that the person asking “how you can represent persons charged with serious crimes?” is not an antagonist at a dinner party but a friend and ally. You might list some of your attributes as defence counsel. For example, we are accustomed to losing gracefully. I did not say we like losing but we do it without blaming other people. We all have our individual styles in our representation of the defendant, but we share some fundamentals. Depending on our experience and skill level, we don't demand an unreasonable fee. Most of us stick with people long after they run out of money. Not every colleague who graduates from law school with us can lay that claim. In fact most of us don’t go into criminal law because of the money. We are lawyers who get so-called Rowbotham orders. Let me review that species for a moment. This is a court order sought only by defence counsel directing us to work at a very low hourly rate for a down and out client who has so pissed off the legal aid social program designed exclusively for him, they won’t help him without a court order! Criminal lawyers still have the liberal idea that in the courtroom poverty should take a back seat. We don’t refuse to represent people because they are shoeless or homeless or friendless. That’s one of the things I like best about my colleagues. We all hate when someone calls our client “the accused” as if he was an object. We prefer to think of him as a human and we use the name his mama gave him. We don't refuse to represent people because the crime or the allegation is repulsive to the public. In fact, there is a lineup for such cases in the barristers’ lounge. We understand that humans can be violent and exploitive and sometimes lie, cheat, and steal. We take them on as clients anyway. Criminal lawyers are not judgmental. Above all else, we understand that everyone has a story. Everyone has a story. When you meet lawyers from other bars, they often ask, did he do it? Defence counsel never ask that question. We don't shy away from a case for political or self-serving reasons. We don't recommend that a client plead "guilty as charged." Any lawyer can do that. We negotiate plea agreements that seem reasonable, but leave the decision to accept or not to the client after full discussion of the pros and cons. Criminal lawyers are never afraid to try a case but realize that certain lawyers are especially skilled in some trial components. We tend to be open-minded about associating an additional lawyer in the appropriate case for the trial. I like that about our bar too. If a trial is the last best option, an acquittal of all counts is the ultimate goal. Some clients think we performed magic in the courtroom or along the way, but we know it's diligence, intelligence, and hard work that can make the difference between the client going home or going to the Big House. We don’t mind the spotlight and many of us even enjoy it, but we are suspicious of lawyers who seek the spotlight for the sake of the spotlight. From time to time, various movements or popular beliefs capture the wider public. We accept their legitimacy. We are aware of the social problem. Criminal lawyers hate cover ups and abuse as much as anyone. But we also know that the reparations movements are looking for someone to blame. They caricature the criminal justice program as inadequate to get certain bad people and seek to cut corners. Criminal lawyers are left defending the presumption of innocence. Last but not least, we are the only lawyers mentioned in the constitution of Canada. It’s right there in 10(b). There is no right to counsel on a mortgage closing, a s. 85 tax rollover or even, and this is important to criminal lawyers, a pre-nup. Every other right in ss. 7-14 of the Charter depends on us. Think about that for a minute. That’s not nothing. If that’s not everything, that’s the list I have.