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Hegdis

So You Want To Do Criminal Defence: Hegdis's Tips and Tricks From The Other Side

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Hegdis, let me start off by saying that you're a legend.

 

I wonder if you can clarify something for me though. When you say,

It's hard to justify defending the guilty.
I suppose it's easy to see what you mean. But I'm wondering how do you (or defense lawyers), justify it at the end of the day?

 

1. I'm coming from a place of curiosity, not animosity, so I'm in no way making a backhanded comment about defense lawyers.

2. I don't mean to derail this thread into the philosophical underpinnings of defense work or invite others to question the position. You've taken the more useful pragmatic approach so I suppose besides my own curiosity, answering this might help law students/prospective law students who want to do this type of work by giving them a point of reference from somebody who seems to have his shit together.

Edited by Lawl

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I completely don't qualify as defence counsel, but I did crim defence clinic work through law school. I'll pitch in so you can compare and contrast an amateur with a pro.

 

First and foremost, at least for me, I justified it on the grounds that in every case you're dealing with someone that's usually completely alone --- a complicated person with unique problems and circumstances --- facing the full brunt of the force of the state.

 

Look at it this way; to some extent, discretion excepted, the Crown represents the aims and attitudes of the government. Consider what Stephen Harper would consider justice for copyright infringers or pot smokers. A lot of the time "defending" someone doesn't equate to "arguing they're not guilty". An awful lot of the time, it's saying "really? A prison term for this? Look at this guy, he's just been kicked out of his house, he can't afford to call his family back home, he lost his job and he snapped on someone that's been harrassing him. I'm not saying he didn't do it, but have some compassion. Give him some work to do to make it up."

 

Crowns don't have the opportunity to get to know your clients the way you do. If they're really not an irremediable scumbag (and usually they're not; they're just people in destructive patterns), it falls to you to keep them from suffering even more than they already have, and to treat these charges as a turning point rather than the next level of degradation.

 

And if they are an irremediable scumbag, your focus shifts. When it's no longer about guilt or culpability, it's about whether or not the system is working properly. It might be worth letting a YOA murderer loose if it prevents the police from just kicking in the doors of every family with children in the school system that matches the ethnic profile of the shooter. You're the only thing keeping the police honest and the investigations sound. If you're defending someone that allegedly sold meth --- and you know he did --- and the cops know he was selling meth because they've been harrassing all the black teenagers in that neighbourhood and patting them down whenever they're alone, you can completely justify sending that guy home on the basis that we just don't run the criminal justice system that way. An arrest like that just doesn't happen in Canada.

 

Likewise where the burden of proof is the question. The police come to a domestic disturbance and find both husband and wife battered and bloody. They've been fighting. They charge both. If you're representing the wife, and you know she started it, you still put the Crown to the proof of it for the next woman who really was defending herself.

 

In short, the alternative to defending the guilty is a system where the lawyer is your trial. If someone appears without a lawyer, you know they're guilty because no lawyer wanted to take the case on. So people charged with a crime will have to come in to see a lawyer and plead their case. No judge, no jury. And justice is whatever the government says it is, and no one speaks on behalf of the person charged. Their story never comes out. They're just another criminal, and away they go, whatever the reason for what they did. Without defence lawyers defending the guilty, the system comes apart and becomes authoritarian, and there's no justice, mercy or compassion for the individual. The justice system becomes a faceless, robotic imprisonment machine.

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Your clients are tough, crazy, abused and abusive, and sometimes guilty as hell.

 

:oops: WOW. The thought of that is just mind blowing.

 

Great post tho

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I completely don't qualify as defence counsel, but I did crim defence clinic work through law school. I'll pitch in so you can compare and contrast an amateur with a pro.

 

First and foremost, at least for me, I justified it on the grounds that in every case you're dealing with someone that's usually completely alone --- a complicated person with unique problems and circumstances --- facing the full brunt of the force of the state.

 

Look at it this way; to some extent, discretion excepted, the Crown represents the aims and attitudes of the government. Consider what Stephen Harper would consider justice for copyright infringers or pot smokers. A lot of the time "defending" someone doesn't equate to "arguing they're not guilty". An awful lot of the time, it's saying "really? A prison term for this? Look at this guy, he's just been kicked out of his house, he can't afford to call his family back home, he lost his job and he snapped on someone that's been harrassing him. I'm not saying he didn't do it, but have some compassion. Give him some work to do to make it up."

 

Crowns don't have the opportunity to get to know your clients the way you do. If they're really not an irremediable scumbag (and usually they're not; they're just people in destructive patterns), it falls to you to keep them from suffering even more than they already have, and to treat these charges as a turning point rather than the next level of degradation.

 

And if they are an irremediable scumbag, your focus shifts. When it's no longer about guilt or culpability, it's about whether or not the system is working properly. It might be worth letting a YOA murderer loose if it prevents the police from just kicking in the doors of every family with children in the school system that matches the ethnic profile of the shooter. You're the only thing keeping the police honest and the investigations sound. If you're defending someone that allegedly sold meth --- and you know he did --- and the cops know he was selling meth because they've been harrassing all the black teenagers in that neighbourhood and patting them down whenever they're alone, you can completely justify sending that guy home on the basis that we just don't run the criminal justice system that way. An arrest like that just doesn't happen in Canada.

 

Likewise where the burden of proof is the question. The police come to a domestic disturbance and find both husband and wife battered and bloody. They've been fighting. They charge both. If you're representing the wife, and you know she started it, you still put the Crown to the proof of it for the next woman who really was defending herself.

 

In short, the alternative to defending the guilty is a system where the lawyer is your trial. If someone appears without a lawyer, you know they're guilty because no lawyer wanted to take the case on. So people charged with a crime will have to come in to see a lawyer and plead their case. No judge, no jury. And justice is whatever the government says it is, and no one speaks on behalf of the person charged. Their story never comes out. They're just another criminal, and away they go, whatever the reason for what they did. Without defence lawyers defending the guilty, the system comes apart and becomes authoritarian, and there's no justice, mercy or compassion for the individual. The justice system becomes a faceless, robotic imprisonment machine.

 

Just beautiful. I hope that the 'Why Do You Want to Go To Law School?' posters don't find this. Or do.

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I wonder if you can clarify something for me though. When you say, I suppose it's easy to see what you mean. But I'm wondering how do you (or defense lawyers), justify it at the end of the day?

 

 

Here's something that gets missed a lot: your clients are just people. That's really it. There are a handful of psychopaths out there, and you'll encounter them, and the hair on the back of your neck will probably tell you when you do. But for the most part, this is a regular person and you're there for them at the absolute worst point in their lives.

 

Think carefully about the worst thing you've ever done. Have you driven home well over the limit? Have you broken into your ex-girlfriend's email account? Have you stolen a nifty beer glass (or six) from a bar? Have you punched somebody? Have you fudged the truth (ie lied) on an official document? Have you grabbed a waitress's ass as she walked by? Did you get conned into a pyramid scheme and draw your family members into it? Did you smoke a joint or drop some E last weekend? Take a minute and imagine it, whatever it is.

 

Now imagine getting arrested for it. You're still you, with all of the complex you-ness that involves. But society will say you're a criminal. You've been charged, right? So guilty then. Suddenly you've been Othered, and what's more, you have a court date coming up. You are now a client. You want a lawyer who gets all of that - ergo, you want to be the lawyer that gets all of that. And in my humble opinion, the best defence lawyers are the ones who do.

 

 

Uriel covered off a lot of the rest of the answer to this - and I agree with him 100% - so I'll just add an additional element as to why you might want to do this sort of work, personally, as an educated, intelligent individual looking for a challenging and satisfying career, if you can handle this pretentious metaphor:

 

Criminal defence not unlike a serious game of chess. You have to keep all the pieces in your head at one time: your instructions, the elements of the offence, the defences available, the rules of evidence, the witness, and the exhibits. They all move around during the case, and when one moves it impacts the whole board. You need a defence lawyer to understand how this works and to strategize about how to proceed, or it or it turns into a simple game of checkers - leap, leap, leap, conviction.

 

There is a rule book. It's your law society rules, and your professional code of conduct. This stuff comes up all the time. As defence, you need to have those rules memorized, well enough so you can see problems coming a mile away. (Sometimes there is no warning though. I've stood down trials because I needed to get a bencher on the phone to ask how to navigate a precarious ethical situation.) Outside of these restrictions, and any imposed by the client or the Court, you are free to proceed as you see fit.

 

You have a lot of control over what you do and how you do it. As in any area of law, you decide what kind of lawyer you're going to be. Criminal defence is not that different.

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Coming from a former high school chess captain [ :uriel: ] , your metaphor was received more favourably than you anticipated haha.

 

There's a myopia that tends to set in when most people think about the "accused," where you tend to create a noir fiction about that person and the events (another symptom being the knee-jerk reaction of assuming guilt a priori in a lot of cases).

 

It sounds like a lot of it is just overcoming the lawyer's prejudices (which is where the ethical dilemmas take place), so that you can defend that person against everyone else's prejudices (i.e. the court & the crown, i suppose), to ensure that the law is properly carried out. Sounds about right?

 

...on a very tangential note, I am reminded of this:

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I just wanted to add one additional hint to the original list of "So you want to do criminal defence".

 

-Keep in mind that your client will lie to you. All the time, and about stuff they'd probably be better off telling you the truth. You have a professional obligation to act on whatever it is they tell you, but don't put your own credibility on the line based on something your client tells you.

Edited by Malicious Prosecutor

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Coming from a former high school chess captain [ :uriel: ]

 

:mad2:

 

I respect your right to be here on invitation, Sunglass Smiley, but I don't like your attitude.

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I just wanted to add one additional hint to the original list of "So you want to do criminal defence".

 

-Keep in mind that your client will lie to you. All the time, and about stuff they'd probably be better off telling you the truth. You have a professional obligation to act on whatever it is they tell you, but don't put your own credibility on the line based on something your client tells you.

 

Absolutely.

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I love the replies to this thread, they've been really eye opening, especially uriel's and hedgis' 2nd post.

 

I apologize if I'm not supposed to philosophize in this section but I think it's relevant. I don't like how quickly we humans like to group ourselves into "us" and "them", law abiding citizens and criminals. If it's a question of breaking the law we all do it. If it's a question of morality, that's alot more complex and grey and has to take into account every single aspect of human nature including biology, psychology, sociology, luck of the draw in life, etc.

 

Alot of people in jail did do horrible things and probably would repeat them if given the opportunity, but I still try to see it from their perspective, I can see why they may have wanted to do it, I don't agree with it and I think people who behave that way should be segregated from mainstream society, but the super emotional way the majority of people seem to react to those kinds of cases makes me uneasy. I think they may be ignoring their shadow as Jung would say and projecting their fears about their own dark side onto others so they can reassure themselves that they're not like that. The Milgram Experiment and Zimbardo Experiment show us that most people would do horrible things in the right circumstances. I'm not saying that people who harm others shouldn't be prevented from harming others in the future but I think the mindset many people approach the concept of justice with is just as primitive as the types of justice we had thousands of years ago since many people see imprisonment as a form of revenge, as if revenge in and of itself accomplishes anything positive.

 

We're all imperfect human beings and the purpose of law is to maintain order in society so I think whatever accomplishes that most effectively is good, but public policy and morality are two totally different things and the majority of people I've encountered seem to see law as an execution of moral authority over others rather than a utilitarian tool of maintaining a functional and peaceful society.

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On that point, from my experience 80-90% of offenders are guilty of Fail to Think During. They're not bad people, a good chunk of them are addicts or destitute, but virtually none of them are evil; virtually all of them just didn't have their brain on during what happened to be a pretty critical five minutes.

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Look at it this way; to some extent, discretion excepted, the Crown represents the aims and attitudes of the government. Consider what Stephen Harper would consider justice for copyright infringers or pot smokers. A lot of the time "defending" someone doesn't equate to "arguing they're not guilty". An awful lot of the time, it's saying "really? A prison term for this? Look at this guy, he's just been kicked out of his house, he can't afford to call his family back home, he lost his job and he snapped on someone that's been harrassing him. I'm not saying he didn't do it, but have some compassion. Give him some work to do to make it up."

 

This reply is a bit late coming ... I enjoyed this thread, particularly Hegdis and Uriel's posts, and I agree with much of what they have to day. But I felt compelled to respond to the above point, which I think represents a common misconception about prosecutorial discretion.

 

The principles of prosecutorial independence and prosecutorial discretion are fundamental to the administration of justice. The independence of the prosecutor from government is not merely a legal tradition, it is a constitutional convention.

 

Make no mistake: the federal government has a profound effect on criminal prosecutions because it is responsible for legislating criminal law, procedure, and evidence. Likewise, the provincial attorneys general set out general policies that govern the workings of prosecutors' offices, including the framework within which prosecutorial discretion is exercised. However, this ain't the USA. De-coupling of prosecutorial decision-making from political decision-making is a signficant feature of our system. Canada is quite different from the USA where, for example, U.S. Attorneys are political appointments, subject to removal by the President, and serving for a fixed term.

 

When I am prosecuting a matter, I have no idea what the prime minister or premier think, nor has it ever occured to me to wonder. The role of the prosecutor is not to give effect to some partisan political agenda, but rather to act as a minister of justice, to present the evidence firmly but fairly, and to be a strong advocate for the truth and the public interest.

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I have obviously never had to do it, but I assume it's a delicate balancing exercise, being Crown.

 

You don't answer to anyone in the same sense that I answer to my clients, but you still have to negotiate dealing with the complainant(s), the police, and the media (and by that I mean an extension of the public's perception of the administration of justice). All of whom might take unreasonable positions and completely misunderstand your role and their role in the whole thing.

 

I'm curious, are there written guidelines for this stuff, or do you just kind of learn as you go? What kind of support do Crown get for these issues (if any)? Is it difficult to manage? Or is it pretty simple once you get the hang of it?

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I have obviously never had to do it, but I assume it's a delicate balancing exercise, being Crown.

 

You don't answer to anyone in the same sense that I answer to my clients, but you still have to negotiate dealing with the complainant(s), the police, and the media (and by that I mean an extension of the public's perception of the administration of justice). All of whom might take unreasonable positions and completely misunderstand your role and their role in the whole thing.

 

I'm curious, are there written guidelines for this stuff, or do you just kind of learn as you go? What kind of support do Crown get for these issues (if any)? Is it difficult to manage? Or is it pretty simple once you get the hang of it?

 

I'm pretty sure every single prosecutorial agency has a published policy manual. Here's the Federal one: http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/index.html

 

However practically speaking it isn't always that useful.

 

Yes, unlike defence where you have only one boss (and frequently that's a very unsophisticated boss), in my experience everyone thinks they can and should tell the Crown how to do their job. You hit on some of the big ones - victims, police and media. But there are also some others. Don't underestimate politics - one of the worst things that can happen to you as a Crown is a demand for a briefing note for a minister because your court case has come up in Question Period. There's no overt political pressure such as "I want you to drop this case because X is a big contributor", but it can be more subtle.

 

One of the worst offenders can be judges. They'll feel quite free to tell you wat they think you should do, and have no problem calling up your superior to tell you what you're doing wrong in court (in their view).

 

The most important factor in all of this is your superior. If they are willing to back you up when a cop, a victim, a judge comes calling, this is an immensely more satisfying job.

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I am just sitting here imagining what I would do if a judge called me to critique my cross or my submissions.

 

Other than immediately assume it was some other defence lawyer playing a prank.

 

That's ... Wow.

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I am just sitting here imagining what I would do if a judge called me to critique my cross or my submissions.

 

Other than immediately assume it was some other defence lawyer playing a prank.

 

That's ... Wow.

 

Well the thing is - I'd love it if they would critique my cross or submissions. I'd love to be given some advice on what is or is not effective.

 

But it's usually complaining about what my position is - whether I should be presenting the case or not, or seeking jail or not. Hey, I'd love it if I could resolve the particular dog file I am presenting - but I couldn't, and I'm not going to just withdraw it

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The fact that a judge would register their opinion on prosecutorial discretion anywhere but on the record or in a written judgment is troubling to me. First, if you can't say it in front of the accused it should not be said. Second, judges shouldn't meddle with Crown discretion unless there is an abuse of process going on - and THEN defence should be bringing a motion.

 

In my humble view. Love to hear more opinions on this.

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The fact that a judge would register their opinion on prosecutorial discretion anywhere but on the record or in a written judgment is troubling to me. First, if you can't say it in front of the accused it should not be said. Second, judges shouldn't meddle with Crown discretion unless there is an abuse of process going on - and THEN defence should be bringing a motion.

 

In my humble view. Love to hear more opinions on this.

 

Of course they shouldn't!

 

About the accused being present - just be clear judges aren't taking me into their chambers in the midst of a trial to tell me I'm being stupid. On the one time THAT happened the judge brought both counsel into his chambers.

 

But no, it's usually said in open court ("Really Crown? You're asking for a plea to THAT charge?"), or is said after court via a call to a manager ("Crown X is being unreasonable in court - he needs to be closing more files"). Or I had a judge who would rip you a new one if you dared to file a Notice of Intention. Of course he had absolutely no right to do so - it's a core part of prosecutorial discretion. Didn't stop him though.

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Look at it this way; to some extent, discretion excepted, the Crown represents the aims and attitudes of the government.

 

This reply is a bit late coming ... I enjoyed this thread, particularly Hegdis and Uriel's posts, and I agree with much of what they have to day. But I felt compelled to respond to the above point, which I think represents a common misconception about prosecutorial discretion.

 

The principles of prosecutorial independence and prosecutorial discretion are fundamental to the administration of justice. The independence of the prosecutor from government is not merely a legal tradition, it is a constitutional convention.

 

Make no mistake: the federal government has a profound effect on criminal prosecutions because it is responsible for legislating criminal law, procedure, and evidence. Likewise, the provincial attorneys general set out general policies that govern the workings of prosecutors' offices, including the framework within which prosecutorial discretion is exercised.

 

's all I meant!

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