“How can you defend those dirtbags?!”

It was my friend Clayton, a retired prison guard. We were sitting together at the ’10am Small Dog Dog Park’ in West Kelowna and Clayton knew I had been a guard at Oakalla prison in Burnaby and a defence lawyer. For him it was more a statement than a question and it was perhaps the two hundredth time I’d been challenged about my work as a criminal defence lawyer. I hadn’t practiced law for over thirty years but it had started up again after I recently posted stories on my blog about some of my more notorious criminal trials. I took no offense. Clayton spoke with a straightforward uncomplicated honesty, saying exactly what he thinks about defence lawyers. And I’m pretty sure he was just saying out loud what most people think privately. It is all part of the embedded, unspoken bias all criminal defendants face when they appear in court.

“Can you be impartial as a member of this jury?”

‘Yes, your Honour.’

“Will you adjudicate solely on the evidence you hear in this court?”

‘Yes, your Honour.”

“Have you been affected by any media coverage or comments on social platforms about this defendant?”

‘No, your Honour.’

Every prospective juror is asked those questions and their answers are honest, in the sense at least that they sincerely mean the answers.

But the fact is, the questions are naive, failing to acknowledge that each juror comes into a courtroom with a lifetime of experiences and prejudices, filters through which they will screen the evidence in the trial. And as with all of us, they have bias which will taint their ability to adjudicate fairly. And they won’t even know it when it happens.

“Well, if he wasn’t guilty why would they charge him?”

“He must have been involved some way.”

We all carry this rhetorical bias, wherever we go. We can’t escape it. It’s just being human. I get that. Over my twenty years as a defence lawyer, I appeared in over three hundred trials and whether it was before a judge alone or a judge and jury, that embedded bias was present in the courtroom.

And never mind this question of bias for the moment, the defendant in any trial is up against overwhelming forces, all lined up to do their part in getting a conviction. Against a team of well trained, educated police officers, highly skilled forensic specialists working in labs with the very best of equipment and resources, and of course, skilled prosecutors, the odds of a defendant being acquitted are slim, to say the least. They can all recite line and verse that they don’t care about getting a conviction, they care about justice being done. What nonsense. Even if they were all replaced by programmed AI bots, that program would have bias. It is an impossible expectation of these ‘officers of the court’ that they will not want to win their cases. Of course they do, it is only human. And even if it is possible to imagine such a system in law school, all that is thrown out in the cauldron that is a criminal trial, where each morsel of material evidence is contested, where real victims weep, where tempers fray and where prosecutors and defence lawyers figh. And that is where it happens, where ‘wanting to win’ twists the truth, where personal animosity shades integrity, that is when justice is sometimes impossible to achieve.

And lined up against all that, the defendant. And his lawyer.

It is from the very beginning an unfair fight but it is an essential one. The stakes are high. We enjoy as few nations in the world do, a civil society governed by the rule of law, a set of rules which we base our social contract upon: We will obey the rules as we long as we trust the rules and the enforcement of them. The way to trust the rule of law is to test it. And they are put to the test in our courts.

And the full weight of that responsibility falls on the judicial system. If it is not trusted we will not obey the laws and then, all bets are off. If a man’s liberty is to be taken if must be after allegations are proven beyond a reasonable doubt. In order to prove those allegations they must be tested. And that is where the defence lawyer comes in. He or she is not a foe of the system, they are part of it. Of course, they create tension. That is their job. A rubber band is not tested until someone pulls on the other end; it is in the tension that proof is revealed. And that is what freed me to be the lawyers that I was.

As I grew to understand how important my role was, not just as my clients lawyer, but as a vital part of a whole system, the more uninhibited I became in court. I learned very quickly that the criminal justice system is very good at what it does, which is to bring people who have committed crimes to trial. And it is even better at convicting them; ninety-five percent of defendants charged with a crime are convicted of either that crime or a lesser offense. Let us assume for a moment that of the remaining five percent, many of them are not guilty and as for the rest, as with any system, there will be examples of the ‘one’s who got away’.

I was an aggressive, unlikable defence lawyer, committed to defending my clients as tenaciously as I could. I defended with purpose and trusted that I was part of a system that would get to the truth, not despite me, but because of lawyers like me.

That is what a good defence lawyer does.

Make no mistake, the state can be oppressive. Surely we all learn that lesson at some point in our lives either through observation or personal experience. That is another reason for an active, observant and uncompromising defence lawyer, recognizing an unfair overreach by the state. Our core constitutional freedoms are principles upon which we have built our great country. The constitutional protection against unlawful search and seizure, for example, can lead to critical evidence being thrown out and a defendant walking. At first blush, it is a ‘technicality’ that infuriates law abiding citizens. But this constitutional protection against unlawful search protects all of us, not just the bad guys. We either have that constitutional protection or we don’t and that commitment is often put to the test during criminal trials. You can be certain of one thing, it is not an issue any prosecutor will bring up.

That is what a good defence lawyer does.

Police are good people, as are prosecutors as are the people drawn to that line of work. Until they’re not. And what is so sinister, so corrupting. It is never seen, it is always hidden and has to be uncovered. No one willingly pulls back the covers on corruption or deception, they have to be ripped back. No one admits lying or withholding evidence, it has to be proven and proven in a system wracked with pro system bias. It is hard.

That is what a good defence lawyer does.

Clients would often ask me if I believed them. Sometimes of course, I did but I would never answer the question directly. It didn’t matter that I believed them. If that was a requirement most criminal defendants would not have lawyers to defend them. What mattered was that I believed in the system and understood my role in it. I believed that the criminal justice system was able to adjudicate the truth and determine whether my client was guilty or not. That freed me to ‘pull the rubber band as hard as I could’, to test the evidence with vigorous research and even more vigorous cross examination. If a witness could withstand that test, they were telling the truth.

I’ve said I came to trust the criminal justice system and I did. But I didn’t trust the government and the politicians who relentlessly call for harsher penalties. In the late ’70’s I had established my criminal law practice in Kelowna BC, a small town in the interior of British Columbia, Canada, the first to specialize in the region. It had proven to be a good decision and I quickly became a ‘big fish in a small pond’ reaching way beyond my fingertips taking cases for which I was not yet ready. I was the most dangerous of the species of ambitious young lawyers; I didn’t know what I didn’t know and in any event I wasn’t going to let that get in my way. There was nothing I wouldn’t attack. Early in my career was when I first ran smack dab into the oppressive power of government. At the time the minimum punishment for importing a narcotic was seven years in a federal jail. Seven years minimum, no exception, judges stripped of any ability to decide on a fair, appropriate sentence for a particular defendant.

Late in the 1970’s a big case broke in Kelowna after seven young men, all of them around nineteen years of age, travelled to Colombia for a vacation. They were the sons of well off families and had grown up with privilege and no doubt a sense of entitlement. Cocaine was flooding North America and Kelowna was no exception with Pablo Escobar, the notorious drug kingpin and leader of a Colombian cartel, more of a cult hero than the wanton violent criminal he really was. It was not uncommon to walk into a backroom of ‘Tramps’ nightclub in Kelowna and see an ounce of cocaine on the table. They were wild uninhibited times. I know, I was there.

These young men, all friends, travelled to Coluombia and immersed themselves in the belly of the beast, buying an ounce of pure cocaine for the equivalent of $20 Canadian. They had the time of their lives. When it was time to return home they came up with a harebrained idea: They mailed themselves an ounce of pure cocaine. Each one of them, shipped an ounce of pure to themselves. They were nineteen, reckless and stupid as only nineteen year old men can be and they had made the worst decision of their lives. One by one they were picked off as they arrived at Kelowna’s airport shipping desk to retrieve their packages. One by one they were charged with Importing Cocaine for the Purpose of Trafficking, each one of them facing a minimum sentence of seven years.

I understand that many reading this will have no sympathy for these young men whatsoever.

“They deserved what they got.”

“I have no sympathy at all.”

“Throw the book at those privileged kids.“

I was hired by all seven families to defend their sons and had considerable success. Essentially the prosecutors could never prove that the kids had imported the cocaine for the purpose of trafficking. Because they hadn’t; it always was for their personal consumption. Each trial was a brawl, prominent in the public eye, with all the ingredients local media frenzied over. And I fought like a tiger, with the zeal of a lawyer who was convinced that the government had passed an oppressive, unfair law, a law which stripped judges of any ability to adjudicate an appropriately fair sentence. And if the system is seen to be unfair, it won’t be trusted. I knew they would all be punished because there was no defence against the possession of cocaine charge. They were literally arrested with an ounce of cocaine in their possession but I had to beat the original case charging them with importing.

I did win those early cases. After the first two trials the prosecutor accepted guilty pleas to possession of cocaine and dropped the remaining importing charges. On the provable facts I had made a sound argument but I believe there was another unstated factor at play. To this day I am convinced that my arguments received a receptive ear with the presiding judges, each one of whom bristled at the government stripping them of their ability to judge. I have no proof of that and there is nothing on the trial record but I was always struck by the openness judges exhibited to my forceful argument. Most often, by style if not substance, I tangled with judges in court but not on any of these cases.

To this day this chapter remains one of my proudest successes as a lawyer. None of these young men escaped conviction but they were convicted of what they were guilty of, possession of cocaine not of importing cocaine for the purpose of trafficking. They had been overcharged by over eager prosecutors, licking their chops at the prospect of the public spectacle they could make of these spoiled young men. All of my clients were convicted of possession and were punished. I know them all to this day and have followed their lives since. Each and everyone of them has gone on to successful, productive lives. They have raised families, started companies, employed others, paid taxes, coached soccer teams and contributed to the communities in which they live. Had they gone to jail for a minimum of seven years in a federal prison, I suspect none of that would have happened. That was government being oppressive, being unfair and it was my job to attack it. I’m not asking for credit, nor am I seeking praise, I was simply doing my job.

That is what a good defence lawyer does.

You may think this is some sort of mea culpa, a justification for my work as a criminal lawyer.

“Hey, it wasn’t me, it was the system.”

But it is not. I felt dirty defending some of my clients; sex offenders and contract killers among them, evil people. Real dirtbags! And I know how good, decent people think about lawyers like me. When I was growing up F. Lee Bailey, a prominent American defence lawyer had a high profile reputation and he was a media star. I can remember watching him on Johnny Carson’s Tonight Show and Carson asking him the same question,

“Lee, how can you defend these people?”

Bailey replied with a practiced detachment,

“You know Johnny, when I was starting out I lost a few cases I should have won. Now I’m older and I win a few cases I should lose.” And he laughed.

I laughed as well, impressed with his packaged dismissal. He saw himself as a gunslinger and knew how to cultivate that media image, fully aware it was good for his career. But he was wrong and worse, the type of lawyer who breeds contempt for the rest of us. None of us gets to detach from our responsibility to the whole, not in a healthy society. All of us must be held to account and defence lawyers are no exception.

I have always believed that without an active, well trained criminal defence bar our criminal justice system will fail. The system is simply too powerful and unchecked it becomes oppressive and unjust. It must be watched and challenged and held to account at every turn. Sometimes it is hard to value that when we learn of a ‘dirtbag’ who has gamed the system, been acquitted on a ‘technicality’ or just gets away with it.

The criminal justice system is imperfect, of that there is little doubt but in each and every trial there are bigger, fundamental issues under scrutiny, issues which protect us all, not just the defendants. They are foundational to a stable society, standing on a thousand years of jurisprudence, the basic bricks and mortar of everything that keeps us safe.

That is what a good defence lawyer does.