Fighting your corner part 5
I hope that the last two pieces in this series have shown that what might seem like an open and shut case is anything but. However I have an even more simple illustration.
Defence counsel acted on behalf of a businessman. He had never been in trouble. However someone tipped off the police that he had received certain stolen property. They searched his business premises and his house. The tipoff was probably malicious, or at least misconceived, because they never found any of the things they were looking for. While searching however one of the police officers decided it was worth checking out the television. Thefts were rife in the area, and perhaps this was stolen. Bingo. The television had a unique serial number that matched the serial number of a television recently stolen in a burglary. Even better, the businessmen had claimed to have had the television before the burglary took place. That could not have been the truth.
Defence counsel first met him when the case was in to plead. He was absolutely adamant that the prosecution case was wrong. When he said that he had had the television for a year (the television which it was said had been stolen two months previously) that was absolutely right. He proposed to give evidence to that effect. He wanted to call neighbours to say that the television had been in the house at Christmas when they came round for a drink. (This was before it had been allegedly stolen). Although he could see that the "unique" serial number was a problem, his position simply was that however improbable his case seemed, it happened to be true. This was precisely what he had told the police in interview, and precisely what defence counsel was told to tell the prosecution. Look again, you've made a mistake.
Prosecuting counsel was not amused. He thought the defence counsel was being stupid. "Your client has to be guilty because of the unique serial number. His story cannot possibly be true. You should tell him he has to plead guilty.". Defence counsel acknowledged the force of those points, but his response was simple. My client tells me that he did not do it. However damning evidence might seem, those were his instructions, and that will be his plea. There is no point arguing his case in the corridor. We will argue it before the jury in due course. Prosecuting counsel was less than happy with this response. The defendant pleaded not guilty and the matter was listed for trial.
A month later, well before the trial, the prosecution asked if the matter could be listed for mention. That is where something has to be outlined to the trial judge. At the mention it became clear that what they were outlining was that the prosecution case had to be dropped. This was because a basic error had been made. What was thought to be the "unique" serial number, was in fact the make number. It would be on thousands of televisions. There was no more reason to charge this man with theft or handling stolen goods than anyone who happened to own such a television. Indeed, in those circumstances his story was effective proof of innocence, because had the television been stolen he would have known roughly when and would have known not to put forward a story that would be so easily contradicted. Thus all the neighbours, who were going to give evidence that the television had been in place well before it was allegedly stolen from another house, were in the event not required.
There is a salutary lesson here. It would have been quite wrong for defence counsel to "lean" on his clients to produce a guilty plea on the basis of "overwhelming" evidence. As a matter of fact, it would also have been misconceived. As it happens even if defence counsel had leaned upon the businessman, he would never have pleaded guilty, because his stance was there was no way on earth he had committed an offence and regardless of what any court said or ultimately did to him he would fight it to the finish. As long as counsel does not mislead the court, then in accordance with instructions counsel's stance should be the same.