As a defence lawyer I am often asked how I cope with representing those defendants charged with the most serious crimes, in particular rapes and murders. Much of my work is with defendants facing the death penalty in Florida, so they are alleged to have committed the most heinous of murders.
For me, the answer is simple, I believe that everyone is entitled to a fair trial and that involves legal representation by a person committed to their case. In all my cases, it is not my role to judge the guilt or innocence of my client, that is for the magistrates or jury. My role is to review the evidence and to advise my client on the evidence as it stands. I will often advise a client that based on the evidence, I consider that a jury will find them guilty, however the decision remains theirs as to whether they plead guilty or take the case to trial. They have a right to a trial, even if the evidence is stacked up against them, and I can quote many high profile cases where the media portrayal of the evidence was such that it was assumed that the defendant would be found guilty, yet the jury found otherwise.
I believe very strongly that a client should have the right over their own destiny, and if they want to take their case to trial, even with the odds stacked against them, that is their decision. Who am I to dictate to them how they should behave, if I have advised them of the consequences as I see them, it is up to the client to decide how to deal with those consequences.
Nowadays I choose to act solely for the defence, however in the past I have prosecuted and defended, and as such I am fully aware that not all my clients are innocent, and that in many cases there is a victim involved. The impact of the crime on the victim should not be ignored. I know of some lawyers who will always try to justify their client’s offending, and will try to vilify the victim. That is not a practice I admire. For one, the fact that there is a victim means that as well as the defendant, there is at least one other person whose life has been affected by the crime (and I put in this manner as it is rare for false accusations to be made in court, so there has usually been a crime committed, what is questionable is whether my client committed the offence). Secondly, to ignore the impact on the victim means that the feelings and empathy of the jury is also being ignored, and this is dangerous, a lack of understanding of the jury means that a defendant may not be receiving the best advice on how the evidence against him or her is going to be perceived by the jury.
I can sleep at night as I know I give my clients the best representation that I can, and I hope that this results in them receiving a fair trial if they decide to plead not guilty, or a fair sentencing hearing if they decide to plead guilty. I am not perfect and they may be cases where I have misjudged the impact of evidence, or miscalculated a jury, however I always fight for my client no matter who they are or their alleged offense. If that means I earn some bad publicity on the way, due to the offences charged, then so be it, this is the profession I have chosen, and I consider myself to be fortunate to be able to do a job I love.
Yesterday, I spent the day hearing about the problems faced by Foreign National Prisoners (FNPs) and the advice workers who support them. The main problems which came across quite clearly are that the prisoners have no one to take on their legal complaints, most of which are the result of State action or inaction.
It must be remembered that most FNP’s are not asylum seekers, most are serving a prison sentence and would like to return home at the end of their term. For example, the Foreign National Prisoners who have confiscation order proceedings running against them. In many cases, these proceedings have been running for over 2 years. The FNPs have served their sentence and wish to return to their home country but can’t do so as the State won’t agree to their release due to the pending confiscation proceedings. There is no Legal Aid available to support these FNPs, and therefore they have to languish in jail until the State can get its act together on the confiscation applications.
The 20 year old criminal defendants who found that they were sentenced to 12 months or more in custody, but their co-defendants who were equally culpable received lesser custody. They wish to appeal against their sentence, but can’t find a criminal lawyer prepared to take on their appeal due to the fact that any reduction in sentence will only be a month or so. The reality is that this month can be the difference between deportation for not for these FNP. The criminal lawyers don’t appreciate the deportation rules in relation to FNPs.
The FNP who had a piece of family jewelry taken from him when he was detained in the police station. He subsequently requested its return, and was told that it had been auctioned as that police authority only kept a person’s property for a year. The police authority had written to the FNP at the address he had given when arrested, but since that date he had been detained either on remand or as a serving prisoner. He wishes to bring an action against the police, but is unable to do so from inside his prison cell and without legal aid, or any money to pay a solicitor.
The male charged with false document offenses who told his lawyer that he was being forced to travel into the country to work in a food takeaway, and had been handed the documents just before they arrived at the port and told to show them. His family had been threatened and he felt he had no option but to travel to the UK and undertake the work. The police and his lawyer determined that he was a smuggled person and not a victim of human trafficking because ‘human trafficking victims come in on the back of a lorry’. He is detained in prison, awaiting deportation, desperately worried that his family are being punished, and his traffickers remain at large, released by the police due to lack of evidence..
There are numerous young detainees who have realised for the first time, while in prison, that they may be subject to deportation. All stated that they were not advised by their lawyer that there was a risk of deportation, and many don’t actually realise that they are Foreign Nationals as they have been in the UK for as long as they can remember.
While the prisoner advice agencies are able to help with the day to day enquiries for these FNP and in many cases provide a lifeline, they are unable to take on the FNP’s legal complaints. Without the possibility of legal aid, they rely on the pro bono assistance of lawyers, but only if the lawyers understand the problems faced by the FNP and the consequences of their serving a custodial sentence will they be able to provide any meaningful assistance. In the meantime the FNP’s, whilst remaining a political issue for the Home Secretary, for most of the population they are the forgotten ones.