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Legal ethics: Intrepid lawyers defending odious crimes

Representing unpopular defendants can be rough, but defence counsel continue to hold tough and navigate treacherous waters for the good of their clients.

Some lawyers willingly, even enthusiastically, defend persons accused of odious crimes. That’s a very good thing for our system of justice, but can be a bad thing for the lawyers concerned. They may get ensnared in dangerous ethical dilemmas. They may come to share their clients’ unpopularity. And they may get on the wrong side of politics.

Ethical dilemmas
One of the most notorious trials in Canadian history demonstrates the kind of ethical dilemma that can confront a defence lawyer. Paul Bernardo was convicted in 1995 of murdering two Ontario schoolgirls. He was represented by Ken Murray, then by John Rosen. By all accounts, Rosen’s behaviour was impeccable, and he emerged from the experience with his reputation intact. It was not so easy for Murray, who for 17 months withheld videotapes of Bernardo’s sexual assaults from police. It has never been entirely clear why Murray acted this way. Presumably, he thought it would help his client. Perhaps he intended to try using the tapes at trial to Bernardo’s advantage.


Murray was charged with attempting to obstruct justice, but was acquitted. Justice Patrick Gravely found Murray’s responsibility in the circumstances unclear, and said: “While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused.”


The Law Society of Upper Canada began disciplinary proceedings against Murray in 1997, but in 2000, after his acquittal, withdrew the complaint and instead appointed a special committee “to devise a proposed rule of conduct to provide guidance to lawyers who may be faced with similar issues in the future.” In May 2002, the committee decided that it needed legal advice (a strange decision, since the committee itself was composed of eminent lawyers). I don’t believe the committee has been heard from since. Confusion about this particular ethical dilemma — ponderously labelled by the law society “a lawyer’s duties with respect to physical evidence relevant to a crime” — presumably still reigns.

Unpopularity
Robert Shantz represented Clifford Olson, who pleaded guilty in 1983 to the murder of 11 children in British Columbia. In an article in the March 2005 issue of BCBusiness, journalist Sarah Efron quoted Shantz: “If you’re defending someone who’s a rotten SOB, a lawyer gets painted with the same brush. The more heinous the criminal acts are, the more some parts of the public want to lay that on you.” Shantz told Efron that his work on the Olson case affected his health and strained his relationship with his family.


The New York Times has quoted Ronald Kuby, a prominent U.S. criminal defence lawyer, as saying, “I know what happens in these cases. Your colleagues shun you. The public hates you. Your family begins to question what you’re doing.”


The Canadian public has just endured the trial of Robert Pickton, charged with the first-degree murders of six women (at the time of writing, the jury has not rendered its verdict). His trial on a further 20 counts of murder will be heard later. The gruesome evidence has appalled the nation. One of Pickton’s lead lawyers is Peter Ritchie, who commands considerable respect. He has been quoted as saying, “Sometimes lawyers have to defend highly unpleasant causes, but it’s not because they want to do those sort of cases.” Police are busy investigating hate calls made to Ritchie’s office.

The problem of politics
When politics are involved, the situation becomes even more fraught, particularly if the lawyer himself has relevant political opinions. A recent U.S. case illustrates this well. In October 1995, Omar Abdel Rahman, a Muslim fundamentalist cleric known as the “blind sheikh,” was convicted in New York of conspiring to carry out a terrorist campaign of bombings and assassinations. He was sentenced to life in prison. The blind sheikh’s lawyer was Lynne F. Stewart, a grandmother and former librarian, now almost 70 years old. Stewart has been described by The New York Times as a “jolly woman,” “round-faced with the slightly owlish manner of a high school art teacher,” and someone who likes to take her granddaughter (she has 14 grandchildren) to watch the Mets play at Shea Stadium. The newspaper also reported that Stewart believes “violence and revolution are necessary to wipe out the economic and racial injustices of America’s capitalist system.” Of the blind sheikh, Stewart said, “He’s being framed because of his political and religious teachings.”


In 2002, it was alleged that Stewart had smuggled messages from the now imprisoned sheikh to Egyptian terrorist cells. She was charged with providing material support to terrorism and violating federal prison rules. Some commentators said her prosecution, decided at the highest levels of government, was an attempt to teach a lesson to radical lawyers who took on odious clients. Others argued that Stewart had overstepped the bounds of advocacy, acting out of political belief, and her prosecution was justified. In February 2005, Stewart was convicted by a jury, and in October 2006, sentenced to 28 months in prison. She is currently free pending appeal but has been disbarred.


So far, Canadian lawyers seem not to have been sullied in this way. The most politically charged trial of recent times was about the 1985 Air India terrorist bombing. In 2005, after proceedings lasting almost two years, Ripudaman Singh Malik and Ajaib Singh Bagri were controversially acquitted in Vancouver on charges of conspiracy and murder. The many defence lawyers in the Air India case emerged unblemished. Now there are the Toronto bomb plot proceedings. In June 2006, 17 people from the Toronto area were charged under the Anti-terrorism Act with terrorist-related activities. They are said to be “adherents of a violent ideology inspired by al-Qaeda.” Once more, the defence lawyers involved appear to be scrupulously steering away from the politics of the matter. So far, so good.


Ethical dilemmas, the poisoned fruits of unpopularity, the dangers of politics. Hats off to the criminal defence bar for navigating these treacherous waters.


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