Fighting your corner part 2
Last week I considered and explained the duty of Counsel in presenting a difficult or unattractive criminal defence. Whilst no doubt readers took the point, they may also have considered that it is some sort of game. That although one plays lipservice to the idea of the defence being there just to present the case, that in reality it is obvious that some people are guilty and a different conclusion cannot and will not arise.
An unnamed QC who is now a High Court Judge could tell the following story. (Well of course he couldn't because it would betray client privilege: however, as the rules explained in the very first QC blog, details are changed sufficient to ensure that the individual case is not recognizable). A man was arrested ("the defendant"). He was eventually charged with murder arising from a brutal killing. The victim had been kicked to death with some savagery. At this stage however the defendant had been placed in a police van with another man who had been arrested for something else ("the other prisoner"). The defendant asked the other prisoner if he was prepared to change shoes. Being extremely frank, the defendant explained that he had killed someone and that when the police took his shoes and examined them they would find forensic evidence which would tie him to the killing.
However, they won't be looking at your shoes to forensic evidence because you're not charged with that type of offence, was the defendant's reasoning. "Why don't we swap shoes" he said. "It won't cause you any problem, and it will really help me."
The other prisoner was perhaps understandably less than thrilled at this suggestion, and made it clear he had no intention of swapping shoes. At this point the defendant tried a different tack. He said that he would kill the other prisoner as well unless he swapped shoes. The other prisoner was having none of it. He told police officers what had happened and needless to say the first forensic tests were on the shoes. It was somewhat difficult for the defendant to explain away the forensic evidence when he had so clearly known about it.
The point of the story however was what would have happened if they had swapped shoes. Perhaps it was unlikely that it would occur the first time, although some feeble minded people are easily persuaded and had the other prisoner been like that he might have agreed. However on the second occasion there was a threat. People sometimes succumb to threats. As the QC pointed out, had he done that there would have seemed to be a cast-iron case against him. His attempt to suggest that they weren't his shoes and that he had swapped them with another person would have been met with hoots of derision.
Although it didn't happen, it just goes to show that sometimes an improbable story could be correct. That is why a jury have to listen and observe and decide upon the evidence. It is also why Counsel must never judge the client and must instead play his or her part in the system. Presenting the client's case to the best of their ability.