Ethical Advocacy: Should Lawyers Knowingly Defend Criminals?

SYNOPSIS:

1. INTRODUCTION:
   1. Indian courts believe that irrespective of whether the party is prosecution or defendant, they both have the right to be heard.
   2. Morality and Law are always at a conflict with each other, and it is the job of lawyers to bring these two together harmoniously.
2. DEFENSE LAWYERS IN INDIA:
   1. An accused is very distinct from a convict: an accused is someone who has not been proven guilty by the court of law yet.
   2. Universal Declaration of Human Rights, 1948, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”
   3. Anyone can be accused of an offence, but not everyone is convicted.
   4. Irrespective of who a person might be, they have the right to be defended by a lawyer and thus, defense lawyers have a very important role to play. (Reference to Ali v. State of Assam)
   5. Always some cases which makes you wonder if defense lawyers should say no to defending contemptuous and hardened criminals. (Reference to Nirbhaya Rape and Murder case)
   6. A defense lawyer should know where to fix a limit.
   7. Theyis always faced with ethical and moral dilemmas, because ethics are what society wants him to follow, while morals are the principles which he himself decides to follow. Therefore, a constant conflict between the two.
3. CONCLUSION:
   1. Defense lawyers are tasked with a very tough job of balancing professional and personal ethics.
   2. Being a defense lawyer requires a substantial set of skills which go beyond being a just good trial lawyer.
   3. Defense lawyers are an indispensable and a very vital part of the justice system across the globe.

INTRODUCTION:

The Indian Justice believes in the principle of Audi alteram partem, which translates to, “listen to the other side”. This means, that the Indian courts believe that irrespective of whether the party is prosecution or defendant, they both have the right to be heard. This also signifies that both the parties are equal in the eyes of law and shall not be discriminated. Even though such a provision has been in place, several people have constantly questioned the choice of an advocate to defend an offender.

After the Boston Bombing in 2013, the nurses who looked after Dzhokhar Tsarnaev in the trauma ward after hisarrest have just one simple, straightforward answer to why they looked after a terrorist, it’s their job. In the same way, a defense lawyers’ job is to defend his client who have been accused of criminal activity. Medicine and law are few of the noble professions where the moral obligations and ethical standards play a very important role. The life of a patient depends on the doctor and nurse, in the same way,life, property, assets, rights and liabilities all depend on the advocates. Morality and Law are always at a conflict with each other, and it is the job of lawyers to bring these two together harmoniously.

DEFENSE LAWYERS IN INDIA:

One of the most celebrated lawyers of our country, Late Ram Jethmalani was in fact, a criminal lawyer.He appeared for former Tamil Nadu chief minister J Jayalalithaa's disproportionate assets case worth Rs 66.65 crore in the year 2014. He argued for 2001 Parliament attack convict Mohd. Afzal Guru demanding the commutation of his death sentence. He even defended Manu Sharma in the infamous case of Jessica Lal’s murder. Even after all this, he was one of the most successful and respected lawyers of the country. This does not have anything to do with the fact that he defended criminals. Rather, he was respected and admired purely because of his work ethic.

To understand further, we need to establish the fact that an accused is very distinct from a convict. The major difference between the two, is the fact that an accused is someone who has not been proven guilty by the court of law yet. According to the Universal Declaration of Human Rights, 1948, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.” Hence, anyone can be accused of an offence, but not everyone is convicted. In fact, in Ali v. State of Assam, the Supreme Court had ruled that a criminal defendant has a right to counsel under Article 21 of the Constitution of India. Hence representing the criminal defendants is not a matter of choice but part of profession.

Every person in India has the right to a legal counsel, even if it is Ajmal Kasab! Ajmal Kasab, the man who terrorized the whole city of Mumbai in the 2008 Mumbai attacks, was defended by Amin Solkar and Farhana Shah who were appointed by the Bombay High court.Here it clearly shows that irrespective of who a person might be, they have the right to be defended by a lawyer and thus, defense lawyers have a very important role to play.

To many people in the public, the idea of defending an accused may seem ridiculous and unethical. The role of the lawyer in court is to present the client’s best possible case, but that role is subject to the lawyer’s duties as an officer of the court and to assist in the administration of justice. In other words, lawyers are there to help judges reach a fair decision. 

A lawyer is never a mouthpiece for the accused. They do not just act for that one client but rather have the job to uphold a sacred duty to ensure that justice is done, and due process is carried out. Their task is to make sure that all the evidences are put forward by the prosecution in order to ensure that justice can really be achieved. But to be able reach justice, which is just and fair, it is imperative for the court to hear arguments of both the sides, the prosecution and the defense. And this is where the job of a defense attorney comes into the picture. Its not easy to be someone who defends a person accused of criminal activities. The prosecution has the job of proving the guilt of the accused, that is they have the ‘burden of proof’, while defense lawyers, on the other hand, have no obligation to present factual evidence. The only goal of the defense is to defend the accused, and they have to do so even if they know that the accused is guilty. The defense is allowed to confuse the witnesses and try to point out any weaknesses in the prosecutor’s case, but it is limited just to that.

It is extremely troublesome for lawyers in some situation to defend their clients, while not breaking the principle of honesty so as to protect the legal profession. Although it is obvious that even though the attorney is bound by the principle of confidentiality in general, they are not obliged to follow it when doing so causes them to become involved in criminal activities as well. Somewhere on that continuum, a defense lawyermust draw a line.They are always under the microscope as there are a lot of times when they are in a very close proximity of the criminals. Hence, being a criminal lawyer is not a cake walk. But on the other hand, there are many accused who are undoubtedly innocent but have been looped in the criminal proceedings. For instance, imagine yourself being accused of barbaric criminal activities. In such times, a prosecution won’t save you, but a defense lawyer would! Hence a defense lawyer is not someone who defends criminals but the one who defends people accused of criminal activities.

Where the client has confessed to his attorney, yet intends to take the stand to deny his guilt, the attorney's dual roles as the advocate of his client's position in an adversary system of justice and as an officer of the court come into conflict. But a lawyer’s duty to his client are paramount.

But there are always some cases which makes you wonder if defense lawyers should say no to defending contemptuous and hardened criminals. The gruesome rape and murder of Nirbhaya on the cold wintery night of 16th December 2012 had left the whole country in shock and birthed waves of protest. Even after the Supreme Court had passed the judgement of hanging the four convicts till death, it wasn’t until 7 years later, after which the death penalty was executed. The reasons behind this long delay of justice is the defense lawyer of the convicts, A.P. Singh.

A.P. Singh holds a doctorate in criminology. He has been accused of exploiting loopholes in the system to save his clients from execution. Strictures have been passed against him by the Delhi High Court, while the Bar Council has issued notices over his conduct on several occasions. While there have been several lawyers who have defended criminals, the reasons for which A.P Singh sticks are the antiques used by him to get justice for his clients; dragging the name of the victim and her family through the mud. While everyone does have the right to a lawyer, the question which stands out is whether it should be at the cost of the victim and her/his family’s life? The legal profession is an elite field. When one person from this field resorts to activities such as that of degrading the victim and hurting the sentiments of public at large, it puts the whole fraternity to shame. Hence, it is very essential that a defense lawyer knows where to fix a limit.

Another ethical code expected by a lawyer to be followed is that he/she should never turn down a client. But shouldn’t a lawyer have the right to say no to criminals when they know that the crime was in fact committed by them. It is understandable that there is always a confidentiality code that a lawyer should follow, but confidentiality and representing a criminal in court are two different things. Representing criminals on the cost of justice, is unfair, unjustifiable and discriminatory for the victim.

Nonetheless, a defense lawyer is always faced with ethical and moral dilemmas, because ethics are what society wants him to follow, while morals are the principles which he himself decides to follow. Therefore, there is a constant conflict between the two.

CONCLUSION:

Defense lawyers are tasked with a cumbersome job of balancing professional and personal ethics. The truth is that the life of defense lawyer is very different from the romanticized version which we see in movies. Working as a defense lawyer means working tirelessly inside and outside the courtroom,in advance of trial and, if necessary, during trial, in order to zealously represent their clients. Being a defense lawyer requires a substantial set of skills which go beyond being a good trial lawyer; they must be good negotiators, investigators, counselors, and even social workers.Defense lawyers may be a client's only listening ear, so they must be prepared to deal with all of the stressful aspects in their client's life at that moment, not just the accused crime. Hence, defense lawyers are an indispensable and very vital part of the justice system across the globe.