Douglas Garland Trial - Guilty- 1st degree- 3 counts / 75 years no parole.

[Iowa_Flames_Fan]

Originally Posted by calgaryblood

No defence lawyer answers this question.

I'm not a defence lawyer, but my guess is the accused generally tells their lawyer everything. It's usually best not to lie to your lawyer, and unless you tell your lawyer about a crime you are GOING to commit (as opposed to one you DID commit), it will be protected by the privilege.

On the other hand, a lawyer cannot permit his client to perjure himself, so if he does tell his lawyer he is guilty, there will be absolutely no chance his lawyer puts him on the stand.

Of course, accused persons quite often don't testify. One of the basic principles of our system is that the accused is not required to give any evidence, and the court cannot draw an adverse inference from his choice to stand by innsilence and simply test the Crown's case.

I actually admire lawyers who can act for someone like Garland. Intellectually, I think what they do is perfectly ethical, and absolutely vital to our polity. It is also, I suspect, incredibly hard.

Speaking for myself, there is no way I could do it. I have a 5-year old boy of my own, so this story shakes me to the core. If it were me having to sit in a room with him and listen to that monster tell his story... Let's just say there is a decent chance I would be in jail.

The thing is... ethically, rationally, intellectually, I am absolutely committed to the idea that every accused person, even the worst among us, is entitled to a vigorous and competent defence.

Emotionally, as a dad? I'll give you a different answer.

A criminal lawyer never lets go of that ethical, rational, intellectual approach to the situation. As I understand it, the good ones can stay committed to their ethical duties to their client, even when their client is a monster. I don't think I could do it.

[puffnstuff]

I had a conversation with a lawyer friend of mine a while back. He would have an idea about the clients guilt or innocence after an initial consultation, but wouldnt necessarily ask them exactly if they did or didnt do it. Each case is unique that way. Rather, after the prosecution would disclose their evidence pre trial, and the client wanted to go to trial, they would work to either discredit the evidence, offer up alternative narratives to the prosecutions story as well as provide their own evidence to counter what the prosecution presents. Some nuance to it for sure. A lot of advice to clients about different scenarios, how things could end up based on what may or may not happen.

[Cube Inmate]

Originally Posted by Iowa_Flames_Fan

I'm not a defence lawyer, but my guess is the accused generally tells their lawyer everything. It's usually best not to lie to your lawyer, and unless you tell your lawyer about a crime you are GOING to commit (as opposed to one you DID commit), it will be protected by the privilege.

Nor am I any kind of lawyer, but if I were I think the first thing I would tell my client is "only tell me what I ask." Some would think this a form of ethical/moral cowardice, but that's greatly preferable to the pickle a lawyer could get into trying to obscure/twist facts he knows to be against his case.

Lawyer: "are you certain that you are the only person who drove that green truck?"
Innocent defendant: "no, but..."
Lawyer: "STOP!"

[united]

Originally Posted by Northendzone

I would expect that perhaps defence lawyers look at defending a guy like this as a professional challenge.

The six-figure payday is probably motivating, also.

I think one of the reasons many people who aren't in the law business are hostile toward defence lawyers is the Hollywood portrayal of defence lawyers badgering, humiliating, and insulting accusers beyond what they deem to be reasonable - as seen in many shows.
The other reason is when the public sees a case against a career criminal with a plethora of evidence against he/she completely thrown out because of a minor infraction (in the minds of the public) by the Police, it is hard to swallow. Many see the headlines of significant evidence being ruled as ineligible because of a seemingly minor procedural mistake and it leaves a bad taste in their mouths - should a significant case be completely dismissed because of a seemingly insignificant error? Some would argue a minor mistake should not excuse a major crime entirely, but perhaps lessen it to a minor degree. A difficult debate, but many defence lawyers seem to brag about their past conquests of having cases tossed based on the most minor of errors, again leading to the bitterness toward them by the general public - how can one brag about such a thing?

[Slava]

Originally Posted by calgaryblood

No defence lawyer answers this question.

It's kind of already been covered, but I wasn't actually asking a lawyer for Garland to come on here and tell us what he said. I was asking this as a generality for someone who has never been involved in the legal system. So for a defence lawyer to say "this is sort of what happens in most cases" isn't a big deal.

[manwiches]

I can say unequivocally this is not necessarily true, regarding the pay. But this also depends where you are in your company (associate v senior partner). Also, most who retain a criminal defense lawyer are like any other person looking for a service. They more than likely are shopping around, asking rates and prices etc. Once a decision is made to choose a particular lawyer/firm, the senior/named partners decide who will take that case. Yes, a high profile case like this, would probably go to a senior partner. However, associates and anybody under help pick up the slack. Unless you are a senior partner, or senior associate, you are more than likely working for under '6 figures'.

My source? My best friend is a criminal defense lawyer in Calgary for a well known firm. His reason for being a criminal lawyer instead of practicing in another stream? He believes that no matter how guilty someone is, everybody in this society deserves to be represented and defended. Do clients come right out and tell him they are guilty? Not necessarily. However in order to properly represent them, the truth does eventually come out, and his job is to help his client understand the legal system, and help him/her not be unfairly represented.

As someone else posted here, if there were no defense lawyers, the police/investigators would pick up the evidence, the Crown would convict and sentence, and this would all be done with just one side's opinion. The court system is one of the fundamental pillars our society is built on.

While I'm not saying this guy deserves anything less than a life sentence (which I believe in Canada is still a joke), he does deserve to be represented and guided through the legal processes our country is built on.

Originally Posted by united

The six-figure payday is probably motivating, also.

I think one of the reasons many people who aren't in the law business are hostile toward defence lawyers is the Hollywood portrayal of defence lawyers badgering, humiliating, and insulting accusers beyond what they deem to be reasonable - as seen in many shows.
The other reason is when the public sees a case against a career criminal with a plethora of evidence against he/she completely thrown out because of a minor infraction (in the minds of the public) by the Police, it is hard to swallow. Many see the headlines of significant evidence being ruled as ineligible because of a seemingly minor procedural mistake and it leaves a bad taste in their mouths - should a significant case be completely dismissed because of a seemingly insignificant error? Some would argue a minor mistake should not excuse a major crime entirely, but perhaps lessen it to a minor degree. A difficult debate, but many defence lawyers seem to brag about their past conquests of having cases tossed based on the most minor of errors, again leading to the bitterness toward them by the general public - how can one brag about such a thing?

[CaptainCrunch]

Maybe to shift things from the whole Defense lawyers are evil corrupt scum sucking pig dogs. I was watching the news this morning and they basically stated that because the evidence in this case is so strong, and its a first degree murder charge that the defense might not have any choice but to put the defendant on the stand so that they can argue for mitigating circumstances if he's convicted.

[troutman]

^Slava: I think I've read statistics that an accused is guilty of what they have been charged with over 97% of the time in fact, if not in law. So, "did you do it" is not normally a discussion a lawyer has to have with their client. When a conviction is clear, the lawyer's role is to get the best possible sentence for the client.

The vast majority of criminal cases do not go to trial, and are dealt with by plea bargain. In cases that go to trial, it is the lawyer's role to poke holes in the Crown's case. You have to establish a mere reasonable doubt. You review the circumstances to see what defences are available - charter violations, evidentiary problems, holes in the witnesses story, identification, intent. If the verdict is guilty beyond a reasonable doubt, you are looking for avenues of appeal, or you are trying to get the best sentence you can for the accused.

[Northendzone]

Surely garland would not be paying his own legal bill for this trial - would he not get help from legal aid?

I'd have to think that he legal for a trial like this would be hundred's of thousands and once you start, you can't say I am out of money no more legal advice please.

Of is the family ultimately on the hook for the legal costs, with garland giving up any assets he may have, house, respect, vehicles etc.

[Johnny199r]

Originally Posted by Slava

So maybe I can ask a completely dumb question to some of the lawyers or people in the know here. Say you have a client like Garland here. Does he meet with his lawyers and give his version of events? I have no idea how this goes or really no experience with the system, so I've just always been curious. Does he basically say "yeah, I did this and here's how it went down..." and then his lawyers try to defend him? Or does he most likely lie and give some kind of story that is completely different?

You go over all of the evidence with the client first and then you can ask them what they have to say, or what their version of events is.

Clients admit guilt to their lawyers often. But it's not that simple. "Yeah I was hitting him.....because he hit me first, or because he stole my wallet" etc etc.

If your client gives you one version of events and then starts to give another when he takes the stand you have an ethical obligation to withdraw as his lawyer.

[greyshep]

Originally Posted by troutman

http://www.greenspanpartners.com/law...nspan-q.c.html

“People always ask: How can you represent a guilty man? There is a very 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 a news broadcast.

I haven't the slightest moral conflict defending people accused of homicide, sexual assault, business fraud, environmental offences, or even crimes against humanity. I don't "draw the line" at anything. If I defended crime, maybe I would - but I don't defend crimes. I only defend people, innocent people. Until they are found guilty there are no other kinds of people for me to defend, and what difference does it make what an innocent person is accused of?

If you are a criminal lawyer, you stand between the abuse of governmental power and the individual. If you are a criminal lawyer, you stand between the abuse of judicial power and the individual. If you are a criminal lawyer, you are helping to mould the rights of individuals for generations to come.

In the search for justice, the criminal lawyer has a pivotal role to play. It is his or her responsibility to see that the accused is not unfairly deprived of his freedom. By protecting defendants, whether guilty or innocent, from the abuse of power by the State, the criminal lawyer protects us all.”

That sounds like a great description, the part that has always bothered me though is that when that defendant is proven beyond a reasonable doubt to be guilty, that the defense lawyer will continue to poke and prod for a light sentence or go onto an often ridiculous appeal process. How can they feel good about that part and how does that mesh with their "defend until found guilty" mantra?

[troutman]

Originally Posted by greyshep

That sounds like a great description, the part that has always bothered me though is that when that defendant is proven beyond a reasonable doubt to be guilty, that the defense lawyer will continue to poke and prod for a light sentence or go onto an often ridiculous appeal process. How can they feel good about that part and how does that mesh with their "defend until found guilty" mantra?

From the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

11. Any person charged with an offence has the right (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[Swift]

Originally Posted by troutman

When a conviction is clear, the lawyer's role is to get the best possible sentence for the client.

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?

[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.

[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?

Personally, I had to represent a convicted pedophile in an application in front of the Chief Justice of British Columbia, for him to have supervised access with his children. I won the application and never felt bad about it for one moment. I trusted that Justice was done in the decision made by the Judge based on the evidence in front of him, presented by effective advocates on both sides.

As Greenspan says, it is "not my job to make moral judgments". "Moral judgments by the lawyer are frequently wrong and he learns not to make them. No lawyer can assume the character of a judge."

[Fighting Banana Slug]

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?

I think the disconnect is that lawyers can't just make stuff up to obtain a lower sentence. The lawyer will need to consider all available evidence, precedent, mitigating circumstances and argue to the best of his or her ability. That is the job, not keeping score on how few years his guy got. I am not in criminal law, but I don't think they are considering "victories" in those terms. I client could receive life in prison, and that lawyer may be able to state factually that he provided the absolute best defense available. That is a win.

[CaptainCrunch]

We're veering way off, but I have to ask how many defense Lawyers would eventually end up having mental issues and breakdowns.

I mean as much as we talk about dispassion, or defending against illegal or oppressive or unconstitutional prosecutor and police tactics.

someone wouldn't be human if they didn't feel guilt about getting a guilty murderer off, or getting a convicted pedophile a short sentence.

[greyshep]

Originally Posted by troutman

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

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

Just my opinion, but that speech doesn't seem to cover any further territory than has already been referenced. I still see a distinct disconnect in the behavior of defense counsel in accepting a verdict and sentence. The items from the charter that were quoted above do not either.

This is the only possible one...

"12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

However, potential punishments are known and decided on in a democratic fashion previous to any case as well, so I am not sure how "cruel and unusual" could apply.

[troutman]

Originally Posted by greyshep

Just my opinion, but that speech doesn't seem to cover any further territory than has already been referenced. I still see a distinct disconnect in the behavior of defense counsel in accepting a verdict and sentence. The items from the charter that were quoted above do not either.

This is the only possible one...

"12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

However, potential punishments are known and decided on in a democratic fashion previous to any case as well, so I am not sure how "cruel and unusual" could apply.

Cruel and unusual means defence counsel is seeking sentences that are fairly consistent with established laws and precedents, taking into account many other sentencing factors:

There are a number of sentencing principles found in sections 718.1 and 718.2 of the Criminal Code:[6][7]

• The sentence must be proportionate to the nature of the offence.
• The sentence must be reduced or increased depending on the mitigating and aggravating factors (discussed more below).
• The sentence must be similar to sentences imposed on similar offenders for similar offences in similar circumstances, but it remains open to the sentencing judge to deviate from the range.[8]
• If the sentence is consecutive, it must not be unduly long or harsh.
• An offender should not be deprived of their liberty if less restrictive sanctions are appropriate.
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention for aboriginal offenders.

https://en.wikipedia.org/wiki/Crimin...ing_Principles

A defence lawyer's duty does not end the moment a guilty verdict is rendered.

Everyone who fights a speeding ticket, is almost always certainly guilty of the offence. Why not just accept the maximum penalty then?

Defending the indefensible? Lawyers on representing clients accused of nightmarish crimes
https://www.theguardian.com/law/2014...ndy-charles-ng

http://www.americanbar.org/newslette...ntclients.html

http://www.ethicsscoreboard.com/list/defense.html

[Fighting Banana Slug]

Originally Posted by CaptainCrunch

We're veering way off, but I have to ask how many defense Lawyers would eventually end up having mental issues and breakdowns.

I mean as much as we talk about dispassion, or defending against illegal or oppressive or unconstitutional prosecutor and police tactics.

someone wouldn't be human if they didn't feel guilt about getting a guilty murderer off, or getting a convicted pedophile a short sentence.

Perhaps veering off, but I think it is a really helpful discussion. The legal community needs to take steps to better explain the judicial system and the role of the lawyer in that system. I think Troutman, MBates, etc. are providing good insight into this area. I hope you agree.

It really is all about the role. I can assure you, these are all humans and I think a good many of them do have stress issues given the importance of the job. (I may be wrong, but personally I think Family law would be the toughest from a mental standpoint).

I think you are jumping the gun about "getting a guilty murderer off". The accused is presumed innocent until proven guilty. That is about as fundamental as it gets. I understand the frustration if you consider that some get off on a technicality, but again, a "technicality" is simply following the rules. We need those basic rules for the system to function.