In Defence of Defence Lawyers

Norm Yallen (1L)

Criminal defence lawyers should be recognized for ensuring that people accused of crimes receive a fair trial. Criminal defence lawyers in the United States have recently received harsh criticism, which skews the legal system toward punishment instead of justice. The Canadian political and legal system better protects the integral contribution criminal defence lawyers can make to ensure justice.

In recent weeks the Republican Party has attacked both Hillary Clinton and Tim Kaine for their past careers as criminal defence lawyers. The Republican National Committee released an ad that highlighted violent criminals that had been defended by Tim Kaine and stated this work rendered him unfit for office. Donald Trump brought Kathy Shelton to the second presidential debate to target Hillary Clinton’s past as a lawyer. Shelton is a rape victim who blamed Clinton for defending the alleged rapist. The implication made by these incidents was that because Clinton and Kaine defended people accused of crimes, they also supported those crimes.

The Republican Party demonstrated a profound ignorance for how the justice system works in their attacks on Clinton and Kaine. The Sixth Amendment to the United States Constitution mandates that all defendants are entitled to a lawyer and a fair trial. Clinton was the judge-appointed lawyer for the accused rapist  and she had to fulfill her duty to make sure justice could be carried out. This attack on defence lawyers is an issue in the American legal and political system at large.

Elections are held both for the position of District Attorney and for judges in many states in America. Candidates often appeal to voters by demonstrating that they will offer protection to society at large by punishing criminals. Serving as a prosecutor is a way to advance in both America’s legal and political systems. Emphasizing law and order while demonizing defence lawyers makes punishment of all suspected criminals seem like the ideal result. Criticizing the right to have legal representation has consequences. The consequence of emphasizing punishment is that the United States has the most incarcerated people of any country on earth. No criminal defence lawyer has sat on the United States Supreme Court in twenty-five years and that threatens the integrity of the legal system.

In Canada, Crown Attorneys and judges are chosen by appointment, which helps remove or distance the judiciary from electoral politics. Insulating justices and lawyers from public pressure in this manner is important because the right to a fair and impartial trial is a foundational value in any fair legal system. When a defence lawyer defends someone accused of rape and murder, it does not mean they are defending those actions. What a criminal defence lawyer defends is the sacrosanct right of the accused to receive a fair trial.

In Canada, criminal defence lawyers are not demonized to the same degree as in America. In 2011, Conservative Prime Minister Stephen Harper appointed former defence lawyer Michael Moldaver to the Supreme Court of Canada. In contrast, the Republican Party believes defence lawyers are unfit for public office. In reality, it is more necessary than ever for defence lawyers to be involved in public office to ensure the rights of citizens are protected. Movements such as Black Lives Matter have raised awareness of how the state abuses the rights of citizens. It is important that ordinary citizens have a voice both in the judiciary and in government. People need to be protected from abuses by the police and the state.

Hillary Clinton and Tim Kaine should be commended for their criminal defence work, not denigrated for it. They performed a thankless task that was unpopular but necessary: in any fair and well-functioning criminal justice system,  everyone must be entitled to competent representation no matter what crimes they are accused of. For that to happen, lawyers and judges must be insulated from public pressure. Thankfully, the Canadian legal and political system seems to have an understanding of the necessity of criminal defence work that the American system sorely lacks.