When people find out that I am a criminal defence lawyer, they always say, “I could never do that. How can you live with yourself helping people that you know are probably guilty?” Here is my answer:
1) It’s Very Rare that I Actually Know that My Client is Guilty
It’s not my job to decide whether my client is guilty of the crime(s) with which s/he is charged. When faced with an accusation of serious wrongdoing, everyone is entitled to the best possible defence. That means that the person assisting him or her should at the very least think seriously about the possibility that s/he might indeed be innocent. Things aren’t always as they seem. Not only do innocent people get accused of crimes, they also sometimes get convicted of them (see: www.aidwyc.org). In some such cases, a defence lawyer who didn’t take seriously enough the possibility that his or her client could in fact be innocent and therefore didn’t pursue every possible avenue to explore alternate explanations for what seemed to be a damning Crown case helped bring about an unthinkable injustice, resulting in months, years, or even decades of lost liberty and stigma to an innocent person.
But what about the clients we know with absolute certainty are guilty (e.g., when they have told us that they committed the offence)? It’s true that even in those circumstances, we are permitted (and ethically obliged) to mount a defence on their behalf, including cross-examination of sometimes very vulnerable complainants. This isn’t always going to be pleasant, but it’s important to remember that this is necessary to preserve the integrity of the system and the confidence that people need to be able to place in their lawyers for the system to function properly (thereby protecting the innocent). Moreover, in such circumstances, we are not permitted to represent the client in any manner we deem most likely to result in victory. Rather, there are some significant ethical constraints (that I won’t go into here) to ensure that we don’t mislead the court by portraying our client as an innocent person (as opposed to simply vigorously testing the Crown’s case, which we are always entitled to do, since it is the Crown that has the burden of proving guilt before someone can be deprived of his or her liberty). It might seem distasteful for us to defend those whom we know to be guilty, but the reasons why we do this are rooted in very admirable ideals, including the need to protect the innocent. It’s much like a priest who protects the secrets of those who confess their sins and crimes, not because he condones the behaviour but because the ability to confess those sins in a protected environment promotes a higher good.
2) Because I Value Compassion
Leaving aside the issue of guilt or innocence, it’s rare to have clients who are completely soulless psychopaths. Most of the time, the ones who are in fact guilty are simply human beings who have f***d up. Sometimes they have done things so terrible that the rest of society no longer sees them as human beings. I can certainly understand this, but I refuse to share that worldview.
Although I am not a religious person, I do choose to believe that there is something precious about all life. Of course, this means that I feel deep sadness and loss on behalf of people who are victimized, but it also means that I feel sadness and loss with respect to people who have lost their way and are so disconnected from others that they engage in anti-social behaviour. Although there may be some among them who are cold-hearted lost-causes through and through, I choose to approach the world on the assumption that most people have a basic goodness in them and deserve a chance to find their way back to it when they have become lost. I might be wrong in some instances and extend some empathy to the undeserving, but that is a more acceptable risk to me than the possibility of failing to give compassion to those who might be saveable and thereby sealing not only their fates but also the fates of those who will suffer the consequences of their dysfunction in the future.
In my view, it’s too easy to become disconnected from others and see them in terms of their misdeeds rather than as human beings who suffer and evolve, and who might be lost or saved through their interactions with others. Yes, it might be easy to draw a line when we have a Paul Bernardo to pontificate about, but once we start down that path it becomes all too easy to extend the same black and white approach to other situations that by no means deserve it.
Setting aside all theory, the only moral truth of which I am certain is that compassion is a muscle which must constantly be exercised, or else it will become shriveled up and useless. I have learned that the best way we can do this is to force ourselves to really look at those it would otherwise be all too easy to dismiss and ignore. In the case of criminally accused persons, it is an exercise in empathy that can sometimes require considerable effort and imagination, especially for those who have not bothered to engage in such an exercise in quite some time. We look not only at what the person has done, but also at the individual circumstances that led them there and what they would need to restore their bond with others. In doing so, we proceed on the assumption that the vast majority can and should be salvaged, and that it is our duty to do whatever we can to act in a manner that maximizes the likelihood of that happening (constrained, of course, by the need to protect society while doing so). At the end of the day, there may arguably still be some (perhaps the aforementioned Bernardo) in whom we can nevertheless feel no humanity and will therefore judge accordingly but we will not have earned the right to do this until we have at least tried to see what humanity there might be in even the toughest cases. In the context of the criminal justice system, it is the role of the defence lawyer to facilitate this process by humanizing a client in the context of a system that can be far too impersonal and abstract.
That isn’t to say that there aren’t circumstances where even after giving that due regard to a compassionate approach we must nevertheless condemn and punish those around us, but it should be done with extreme reluctance and even sadness. It should never be the product of the gleeful vengeance that unfortunately can sometimes seem so prevalent today.
Bringing it back to the issue of why I would be proud of what I do, I can recall how my career as a criminal lawyer began long ago in my undergraduate days when I started to play a little game whenever people around me would behave badly. I would ask myself “what could be going on in their lives that might explain why they are behaving that way?” Basically I would write some poignant and sometimes elaborate fiction for myself (the guy who just elbowed me without apologizing had just found out that his mother was dying and was barely even conscious of his surroundings as he struggled to make his way to his sister’s place to impart the horrible news to her, etc.). Of course, none of it was ever true, but I learned that there almost always was a story that could make us understand (albeit not condone) the unacceptable behaviour of those around us. Sometimes the explanation would lie in the immediate past (like the simple example I just gave), and other times we would have to look deeper, but almost always there was a story that could be told.
Not only do I suggest this approach in an effort to forestall excessively harsh judgments of others, I also suggest it for our own well-being. It is too easy for our constant moralizing and line-drawing to become a slippery slope that colors our view of the whole world, causing psychic harm to us and those around us. We have to be constantly on guard against lapsing into this state of atrophy of our empathic abilities. Moreover, it is also a benefit that we and those we love might need someday, since there very few among us who walk through all of life with freshly polished halos.
I have discovered in many of my fellow criminal lawyers an extraordinary capacity for empathy and compassion that makes me feel extremely proud to be one of them.
