PROCEDURAL AND ETHICAL OBLIGATIONS OF DEFENSE ATTORNEYS

Oct 22, 2013 Features / Columnists, Peeping Tom

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The Trayvon Martin case was the Trial of the Year in the United States of America. It riveted public attention and at the conclusion even forced the President of the United States to make a statement.
America was on tenterhooks following the not guilty verdict in that case. Riots were expected given the public sentiments about the case which revolved round the shooting death of a seventeen-year-old kid.
In his statement on the verdict Obama said that violence would be a dishonour to the young man’s death.
Others called for people to appreciate that they lived in a democracy which required acceptance of a verdict by a court of law even if persons disagreed with that verdict.
Democracy works when and only when there is a regard for institutions.   If these institutions are to work effectively in serving the interests of justice, they require rules of procedures and written and unwritten codes of ethics. If some rules of procedure are breached then the very institution of a trial can end up becoming a disservice to the wider interests of justice.
The same thing can happen when ethics are breached. These ethics may not always be legally enforceable but they remain an integral and critical part of the legal tradition that helps to preserve democratic institutions.
If the Trayvon Martin case was the Trial of the Year in the United States, the case involving charges against those charged for the Lusignan Massacre was supposed to be the Trial of the Century in Guyana because here were some accused appearing before a jury charged with one of the most heinous crimes in our country’s history.
The shooting to deaths of persons, including children was definitely one of the deadliest crimes in Guyana since the start of the 21st century. Sadly, our country’s memory of pain is all too short. The case did not garner the sort of public attention that was expected of such a major trial. In the end the jury returned a verdict of not guilty.
The accused were freed. There was no public outcry over the verdict. No need for any public statements calling for restraint and respect for the court’s verdict.
After the dust had settled, it was reported that one of the jurors in the trial was previously represented in a civil matter by one of the defence attorneys. This issue is presently engaging the court and thus comment has to be restrained at this time on this particular case.
However, there has arisen another related issue: whether the defence attorney had an obligation to inform the judge that the juror in question was once his client. Obviously, from a procedural point of view he did not.
The role of the defence attorney from a procedural point of view is to simply establish that a case has not been made against his client or that if such a case has been made that this case was not proved beyond a reasonable doubt.
No one needs reminding that there is no procedural obligation for a defence attorney to inform the court of any conflict of interest between himself and a juror. That is for the prosecution to find out and to raise as an objection before the trial judge.
But what about an ethical obligation? Is there an ethical obligation on the part of a defense attorney to point out such a conflict of interest?
Surely, any defense attorney would know that if the prosecution ever found out about a juror- defense attorney relationship, this could form the basis of an objection that could cause the aborting of the trial. Now if that trial was going in the defense attorney’s favour, such a development would be tragic because it would mean that from a winning position, the defense would now end up having to face a new trial.
So from the perspective of the client’s interest, there can arise an ethical obligation for a defense attorney to point out any conflict of interest, providing of course that such a conflict of interest was known at the time by the defense attorney.
Surely one cannot expect a defense attorney to object to what he may not at the time have recalled.
But what if it was not in the interest of the defense attorney to point out the conflict of interest? Is there still an ethical obligation to do what was essentially a task of the prosecution?
To answer this issue, one should look at the recent hullabaloo that has reared its head over Facebook comments by a young lawyer who suggested that she did not support the actions of criminals. This it has been said is contrary to the presumption of innocence.
As has been explained repeatedly in this column, the concept of presumption of innocence simply means the burden of proof is on the prosecution and not on the accused. It is the former who is required to prove that the person is guilty.
Thus the presumption of innocence is concerned with legal guilt and not factual guilt.
All an accused lawyer has to do is either establish that there is no a case or that the case has not been proved. The defense lawyer is not restricted from believing that the person he or she is representing is guilty. This is the difference between legal guilt and factual guilt.
A defence attorney is concerned with disproving legal guilt, that is, regardless of how that attorney feels about what their client did, the job of that attorney is to disprove that the prosecution proved his or her case beyond reasonable doubt.
An attorney may have his or her own views on the crime itself or even know the truth about what happened. However those views and opinions on factual guilt are irrelevant.
What matters is legal guilt which is for the prosecution to prove. In doing so, it is the primary responsibility of the prosecution to ensure that there are no circumstances prejudicing the jury against the prosecution just as it is the duty of defense attorney to guard against prejudicial circumstances against his or her client.

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