[troutman]

Originally Posted by Cameron Swift

I guess this is what I have trouble understanding. How can a lawyer consider it a victory if he got his rapist client a 1 year sentence instead of a 6 year sentence (made up numbers) Wouldn't that eat you up knowing that you got a criminal out on the streets earlier than he should be, especially if he re-offends?

Here are excerpts from a longer speech by Edward Greenspan on the Role of Defence Counsel:

http://speeches.empireclub.org/60446/data

I am always asked how can you defend "those people." How can you act for a guilty man?

"Dear Mr. Greenspan:

As a high-profile member of the judiciary, you were always respected by me, and I am sure by others.

I was absolutely shocked to read that you are defending the lowest form of amoeba life on this earth. The pathological types who distribute pornography of the worst kind should be fined up to their proverbial eyeballs. Here you are, supposedly a respected lawyer, a member of the Queen's Counsel."

I have a simple answer to all those concerns and it is involved in a consideration of the right to counsel. It is the only context in which these questions can be considered.

The concept of a right to counsel is one of the most significant manifestations of our regard for the dignity of the individual. No person is required to stand alone against the awesome power of the government. Rather, every criminal defendant is guaranteed an advocate-a "champion" against a "hostile world," the "single voice on which he must rely with confidence that his interests will be protected to the fullest extent consistent with the rules of procedure and the standards of professional conduct." Our Charter of Rights and Freedoms in this great land says an accused person has the right to retain and instruct counsel. It does not say every accused except gamblers, thieves and robbers. It does not say every accused except communists, members of the FLQ, members of organized crime and narcotics offenders. The right to counsel is an absolute right which extends to every person charged with a crime, no matter how socially or politically obnoxious he may be, no matter how unorthodox his thinking or his conduct or how unpopular his cause or, yes, no matter how strongly the finger of guilt may point at him. And I say that the right to counsel would be an empty sham if the members of the bar did not have a corresponding duty to defend all those who seek representation within only two limits. The limits of honesty and integrity.

For me, a criminal lawyer who refuses to act for an alleged "organized" criminal, a corporate accused, a businessman (and there are such lawyers), a Nazi, or for someone accused of crimes against women, children or the environment is like a medical doctor who refuses as a matter of principle to treat someone suffering from syphilis or AIDS.

Project yourself for a moment into the position of a defendant. If you should one day find yourself accused of crime, you would expect your lawyer to raise every defence authorized by law of the land. Even if you were guilty, you would expect your lawyer to make sure that the government did not secure your conviction by unlawful means. You would be justifiably outraged if your lawyer sat silent while the prosecution deprived you of your liberty on the basis of a defective indictment, perjured testimony or a coerced confession.

And the role of the defence counsel, the obligation the community places on him, is a societal role-to defend the constitutional guarantees of presumption of innocence and the requirement that in our democracy no one can lose freedom unless and until the state can prove guilt beyond a reasonable doubt.

The most important, the most frequent question I am asked, the question that comes up at my cocktail parties, is: How do we represent a guilty man? There is a simple, quick and complete answer. Our whole system of criminal justice is built on the basic premise that every man is presumed innocent until he is proven guilty beyond a reasonable doubt. His guilt must be shown by evidence produced by a prosecutor in a courtroom-not in a newspaper or broadcast.

"Guilty" in this frame of reference is not a moral term. It is a legal term. No one is legally guilty until a judgment of guilt has been made by the court. The lawyer is neither expected nor qualified to make a moral judgment on the person seeking his help. Moral guilt or innocence is no more within the province of the lawyer than within the jurisdiction of the court. The accused is entitled to have a trial and to have his legal guilt proven beyond a reasonable doubt by evidence tested in the crucible of cross-examination. He is not entitled to produce perjured evidence in court or to testify falsely. But he is entitled to sit silent and force the proof of guilt. Moral judgments by the lawyer are frequently wrong and he learns not to make them. No lawyer can assume the character of a judge.

A defence counsel's job is not to believe or to disbelieve. A defence counsel's job is i not to make moral judgments. If you must make them, don't practise criminal law. Indeed, the Professional Rules of Conduct clearly say a lawyer should keep his private opinions as to credibility or merits to himself.

When a defence lawyer takes on a brief he must do so as in the words of a famous English lawyer:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

Let justice be done-that is, for my client let justice be done, though the heavens fall. That is the kind of advocacy that I would want as a client and I feel bound to provide as a Canadian advocate.