[Reader-list] In Defence of defending the reviled

[Taraprakash]

The following article from Hindu, leaves out the trend of influencing the 
jury by unfair means and buying out the witnesses.

In defence of defending the reviled
Vishnu V. Shankar
By giving terrorists, dictators, and even manipulative defendants proper 
legal representation and a fair trial, we not only occupy the moral high 
ground
to condemn them; we also create potent symbols of the superiority of our way 
of life in contrast with theirs.
What connects Captain Preston, Kehar Singh, Saddam Hussein, Manu Sharma, and 
Salim Hamdan? Besides being among our community’s most reviled individuals
(many of them at least), they were defended by some of the most 
conscientious lawyers of their time. Unsurprisingly the legal profession’s 
time-honoured
commitment to defend the most reviled of defendants has never been free from 
criticism, even in societies committed to the rule of law such as India and
the Uni ted States. In November 2006, Ram Jethmalani, one of India’s most 
respected criminal lawyers, was attacked on television and in the press for 
defending
Manu Sharma, the prime accused in the Jessica Lall murder case. In January 
2007, Charles Stimson, a senior Bush administration official responsible for
the Guantanamo detainees, called for a boycott of the law firms who were pro 
bono representing the detainees. A year has passed since these events and
since the Supreme Court is to shortly decide Mr. Sharma’s appeal against his 
conviction, it is about time to re-evaluate the issue.
“Come on, why should lawyers defend someone who is so ‘obviously guilty’?”
Although this may sound like self-serving lawyer-talk, the question of 
guilt, “obvious” or otherwise, is for the court and not for the lawyer — or 
for the
press. The honest lawyer (there are many of us, I assure you) does not 
manufacture facts (the ‘crime’ has already been committed) or twist the law 
(the
law already exists) and certainly does not lie. Among other things, lying 
destroys that intangible asset to success at the bar — reputation. 
Nevertheless,
even honest defence lawyers do put a gloss on the evidence as well as the 
law in favour of their clients — but so do the prosecution’s lawyers. The 
truth,
according to theory, emerges from this adversarial cauldron. Nobody 
seriously believes that this system is perfect. What lawyers believe is that 
the alternatives
will exceed the monstrosity of a Kafkaesque trial, where prosecutor and 
judge are rolled into one.
The media have suggested that public opinion should determine whether Mr. 
Jethmalani should represent Mr. Sharma. The public, according to the press 
at
least, had pronounced him guilty. Yet “obvious guilt” has the unpleasant 
familiarity of mob justice and societal prejudice. Consider the European 
inquisitions
or the ad hoc caste panchayats. As Bob Dylan memorably put it in Hurricane 
(1976), a song about the 1967 murder conviction of the black boxer Rubin 
‘Hurricane’
Carter: “…if you’re black you might as well as not show up on the streets 
‘less you want to draw the heat…” Even more tellingly: “…all of Rubin’s 
cards
were marked in advance…the trial was a pig-circus, he never had a chance…” 
If public opinion can deny Mr. Sharma legal representation today, tomorrow 
it
can deny other unpopular defendants proper representation — lower castes, 
religious minorities, the poor, women, sexual minorities, and others.
“Okay, I can see why the ‘most prejudiced’ need good lawyers but why the 
high and mighty like Manu Sharma who abuse the legal system?”
Equality before the law
Our Constitution entitles us to equality before the law — no accused, meek 
or mighty, can be disfavoured for legal representation. This embodies a 
deeper
truth: a criminal trial is essentially a commitment to pursue the truth and 
nothing else. A criminal trial is not the forum to ventilate even genuine 
grievances
about power imbalances in society. A criminal trial, unlike an affirmative 
action law, is not meant to favour the weak over the powerful. The purpose 
of
a criminal trial is to determine the truth — whether Mr. Sharma murdered 
Jessica Lall and, if he did, to punish him for it by expressing our 
collective
moral outrage. Whatever the Supreme Court’s verdict will turn out to be, Mr. 
Jethmalani’s courageous refusal to withdraw from the case reaffirmed our 
society’s
unqualified commitment to the truth.
The commitment to the truth requires fair access to legal representation. If 
the ‘problem’ was that Mr. Jethmalani’s unquestioned legal brilliance would
tip the scales in favour of the defence, it would have been solved not by 
getting him to withdraw but by getting equally skilled lawyers for the 
prosecution.
Fortunately, Mr. Jethmalani does not have a monopoly over high-quality 
advocacy in this country. Still, if defendants buy witnesses or bribe the 
police,
courts should punish them for it. But denying them lawyers of their choice 
is troubling for both moral (why fight a wrong with another wrong?) and 
pragmatic
reasons. If incompetent lawyers reign in the courtroom, on either side, no 
one will be wiser about who killed Jessica Lall.
“Isn’t there a difference between defending ‘ordinary’ criminals and those 
who commit ‘high’ crimes like terrorism or genocide?”
On March 5, 1770, at the height of revolutionary fervour in the American 
colonies, a group of British soldiers led by Captain Preston shot and killed 
unarmed
civilians in what is known as the Boston Massacre. Still he was defended not 
by an English barrister but by an American patriot and future President, 
John
Adams. History abounds with similar examples. Mr. Jethmalani defended Kehar 
Singh, who was accused of killing Prime Minister Indira Gandhi; Ramsey 
Clark,
a former U.S. Attorney General, defended Saddam Hussein; and many American 
law firms pro bono represent Guantanamo detainees, such as Osama bin Laden’s
bodyguard, Salim Hamdan.
Criticising these lawyers shows a fixation with short-sighted goals: this 
defendant, this trial, this crime — this conviction. This “ends justifies 
the
means” approach destroys a crucial justification for criminal justice — 
expressing the collective moral outrage of society.
Collective moral outrage can legitimately be expressed only from a position 
of collective moral superiority. If I treat you the same way that you have 
(or
would have) treated me, how can I be morally superior to you? I may even be 
your moral equal but I can never sit in judgment over you. This is not 
philosophical
sophistry but is embodied throughout the criminal law. Why, in a murder 
trial, is a damning confession extracted by torture inadmissible in 
evidence? This
is so because in respect of the confession at least, the prosecution and the 
accused have been reduced to moral equals — each committed a violation of
another’s right to bodily integrity. Likewise, denying defendants the 
counsel of their choice makes it impossible to legitimately convict them. By 
doing
so, we risk cutting ourselves on that sharpest of knives — moral hypocrisy.
Collective moral superiority is especially valuable when the community is 
fighting a war of principle and ideology — for example, the ideals of 
liberal
democracy versus the intolerance of religious fundamentalism. Like all 
important values, the moral high ground does not come free. The defence of 
the reviled
involves costs — unfortunate acquittals, lenient sentences, and worse — and 
we will lose many battles before we win the war. A mature society committed
to the rule of law will resist the popular impulse to react to temporary 
discomfort. This is what separates us from them. By giving terrorists, 
dictators,
and even manipulative defendants proper legal representation and a fair 
trial — the very ideals they would deny the rest of us — we not only occupy 
the
moral high ground to condemn them, we also create potent symbols of the 
superiority of our way of life in contrast with theirs. The defeat of crime, 
terrorism,
intolerance — and the resolute condemnation of the reviled — require no 
less.
(Vishnu V. Shankar, a graduate of the National Law School, Bangalore, and 
Oxford University and a former law clerk to Justice B.N. Srikrishna, is a 
student
at the Harvard Law School.)

----- Original Message ----- 
From: "Tapas Ray" <tapasrayx at gmail.com>
To: "Naeem Mohaiemen" <naeem.mohaiemen at gmail.com>
Cc: <reader-list at sarai.net>
Sent: Wednesday, November 28, 2007 9:29 PM
Subject: Re: [Reader-list] Response to Noam Chomsky, Howard Zinn et al on 
Nandigram


> Thanks, Naeem. It will be interesting to see what they say.
>
> Tapas
>
> Naeem Mohaiemen wrote:
>> There is a group letter (response to the response) being drafted by
>> the original signatories (Chomsky, Ali, Bilgrami, et al).
>>
>> By the way, one of the earlier emails on this thread indicated a
>> theory that the letter may have been initiated by Vijay Prashad (I
>> suppose an unsaid hint may be that the "well meaning white liberals"
>> had been duped by the "argumentative indian").  I checked w/ Vijay--
>> he did not initiate the letter, although he did indeed sign it.
>>
>>
>>> From: Tapas Ray <tapasrayx at gmail.com>
>>> I was wondering if you have received a response from Prof. Chomsky or
>>> any other signatory of the open letter published in The Hindu.
>>>
>> _
>
> _________________________________________
> reader-list: an open discussion list on media and the city.
> Critiques & Collaborations
> To subscribe: send an email to reader-list-request at sarai.net with 
> subscribe in the subject header.
> To unsubscribe: https://mail.sarai.net/mailman/listinfo/reader-list
> List archive: &lt;https://mail.sarai.net/pipermail/reader-list/>