In Defence of the Guilty

Recently I gave a talk to a high school law class, and of course the inevitable question came up, “How can you defend someone you know is guilty?”

That’s actually a wonderful and important question, because it opens a window into the heart and soul of our criminal justice system. In fact, it goes to the very core of our precious democracy and the rule of law.

Autocrats of all sorts like to just “Lock her up.” Donald Trump and Vladimir Putin operate from the principle that if you are strong, you are entitled to imprison, trample and murder the weak. Those of us in civilized societies don’t see it that way.

In enlightened societies there is a presumption of innocence, and the burden is upon the state to establish guilt. There are two parts to that.

First, “guilt” must be established with reference to openly known standards. In other words, you can’t just make up crimes in retrospect so as to jail or execute your enemies.

Second, guilt must be established “beyond a reasonable doubt” and according to reliable tests. Generally speaking, this means that the state has the burden of presenting evidence which is convincing to the point that a dozen reasonable people off the street could with a clear conscience agree to convict.

So this sets the table to answer the question, “How can you, as a defence lawyer, defend someone that you know is guilty?”

The simple answer is, “You can’t.”

But there are really only two ways that you actually know that a client is guilty. The most obvious is if he tells you so (and even then, you need to be careful that he isn’t falsely admitting to guilt for some ulterior motive– more common than you might think.) The other way is that you are a witness to the crime, not a very common circumstance for defence counsel.

So, by and large, you end up with a client who has been charged with a heinous offence, who does not admit to you that he did it, notwithstanding some apparently pretty convincing evidence that he did commit the crime. (The key word is “apparently”.) It’s now your job to raise all reasonable doubts and make the state prove each and every element of the offence. If they can't do so, your client ought not to be convicted, no matter how much the press and the public may hate him. If and when it's your turn to sit in the prisoner's dock, that's the way you will want it to be.

Some criminal defence clients sit across your desk and look vicious and shifty. Others are dressed in Armani and look suave and elegant. No matter. Each one is a member of our free and democratic society, and until the state achieves the burden of proving that they should be penalized or deprived of life or liberty, they deserve our full-throated, unreserved, 100% effort to maintain their innocence and dignity.

We do this in part remembering all the Donald Marshalls and David Milgaards who languished for decades in prison because of shoddy evidence collection and a haste to convict. Canada has on its hands the blood of men hanged in haste, after whose death we learned the real, exonerating, evidence.

We do this because Russia and China and a host of other despotic states get rid of troublemakers by way of sham trials.

We do this because we treasure our freedom, our democracy, and our civilization.

We do this because it is the right thing to do.