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Sunday, 1 May 2011

About the duty to represent

Now, here's the thing, over in the US, the DOJ has stopped defending DOMA because, well, it's an evil law that entrenches bigotry. I approve

The haters, naturally, do not and are quite fond of there being bigotry in the law and decided to pay vast amounts of everyone-tighten-their-belts-money to the private law firm King & Spauldin.

Now that firm has decided to back out. They have given an excuse but I think the reason is:

Government contract! YAY money maker, let's milk it for every penny!
..hey these guys seem to be annoyed
...oh wow they're really annoyed with us
The PR why didn't ANYONE think of the PR?!
ABANDON SHIP! ABANDON SHIP!

I think that covers it fairly neatly.

And now the usual suspects are grumbling. And one particular grumble is how lawyers shouldn't turn down cases like this, the idea that it would be like leaving the last man on death row without representation and, ethically, aren't lawyers required to take all cases?

Ok, let me tackle this one. Because it's actually something close to my heart and something I passionately believe in. Everyone needs representation.

Without legal representation you are dead in the courts. Yes I'm sure there has been odd person X who has managed to do amazing things in the courts without a lawyer. He's an aberration. Without trained and competent legal representation you are dead in the courts. I don't care how right you are, how just your cause or how pure your soul – without a lawyer you are screwed.

And the court – especially the prosecution – has vast resources. Far more so than little defence lawyers like myself. It's called the “inequality of arms” and one of the reasons there are such strong evidence rules, disclosure rules, presumption of innocence etc etc. The state has vast resources and vast tools here and you have nothing, no power, no strength and zero understanding of the process, procedure or the rules in place that will allow you to sink or swim. Your lawyer and the rules of court are the only thing that comes close to evening the odds (hah!)

And our entire system of adversarial law depends on a fierce and powerful defence. The system puts two sides against each other, both of which have to fight to the best of their abilities and the side that is correct will prevail and the truth will be found out. Without an adequate defence, truth can never be found – because the prosecution's case no matter how flawed or incomplete or inaccurate or misunderstood (or corrupt, or deceitful etc etc) faces no opposition and will just reign supreme.

So, yes, a defence – a capable and fierce defence – is an essential part of the adversarial system. And because of that – and my passionate belief in that – I have to take cases I'd rather not – and I've willingly taken cases I COULD have ethically ducked out of. I have represented rapists and child abusers and men who get their jollies beating up gay men. I have represented wife-beaters, muggers and a man who coshed little old ladies. I've had to see dead bodies, hold the hands of tearful victims and look at some of those abuser's horrendous pictures. I have had to sit in small, locked rooms alone with men I feared and have been forced to run for the door, banging for help and fending my client off with my metal edged briefcase (useful tool) before now.

And I'd do it all again


But you know what links all these? You know the core element that made me defend all these people, no matter how vile I found them, no matter how revolted I was, no matter what nightmares I left with or even no matter how I feared for my own safety?

They were PEOPLE.

And people have rights. People need defending. People need a shield in the justice system. People are owed justice

DOMA is not a person. DOMA being struck down will not ruin anyone's life. DOMA being struck down will not see an innocent weighed with the stigma of being a criminal, it will not see them lose their freedom or their property or their reputation.

DOMA is not owed a defence, a protector or someone to stand for its rights. It doesn't have rights.

Quite the opposite, DOMA is a thing that reduces rights, limits rights, restricts rights. It quite literally does not enhance, further or benefit the life of anyone or anything on the planet. It is a thing that literally does NOTHING but harm.

People need defending, no matter what they've done, no matter who they are – because their lives cannot be cast aside so casually. Because life and people have worthy, because our criminal justice system, broken as it is, would be in ruins without that defence.

Prejudiced laws do not, they're not people, they do not need defending, they cannot be wronged, they cannot be done an injustice.

So, if you are Martin, the murdering monster from Manchester or massacre Mabel and Marjorie, then you are owed a defence and I will stand forward and defend you without a hesitation – indeed I am ethically required to do so

But if you are a law preventing Mabel and Marjorie from marrying each other then I owe you nothing – my CHOICE to defend you is that, a choice – and one I can be criticised and pressured for.