16 | March 27, 2019
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Defending the Role of the Defender An interview with Professor Abbe Smith of Georgetown CAMERON COTTON-O’BRIEN (1L) Smith represented Patsy Kelly Jarrett , who was convicted of murder and spent twenty-eight years in prison. Jarrett maintained her innocence throughout. She was eventually pardoned.] But for the other folks, they’ve been in so long they pose no threat to anybody. You know they have family and fr iends on the outside—it’s like they’ve been banished from the world. That inspires me too. I think as a cr iminal defence law yer, you can’t be both judge and law yer. You’ve got to put your opinion of g uilt and innocence to the side. The currency of the cr iminal justice system is not truth, it’s proof. I embrace that roll of tak ing on the state and mak ing them meet their burden. How do you respond to people who ask about why you choose to defend people you t hink are g uilt y? It’s one thing to demand an explanation. It’s another thing to misunderstand the role of the law yer in a free societ y. We’re It was not long into law school that some only as good as our abilit y to prov ide fairfamily members and one of my closest ness to the least popular; to the most refr iends started g iv ing me concerned and v iled. A nd that’s a draw for defence lawdubious looks when my response to what yers, because we understand, nobody is sort of law I was interested in was: cr imigoing to question why you’re representing nal. Given that I have yet to even sit for an somebody in a shoplifting case, or a drunk exam in the subject, any plausible response dr iv ing case, or a possession of mar ijuana I could g ive would be far too abstract to be case—those are the k ind of cases that evconv incing, so I started hunting around for er yone can k ind of relate to. wr iters on the subject. I eventually came But the really ser ious ones, where a peracross the work of Professor Abbe Smith, son is made out to be a monster, those are now of Georgetown Universit y in Washingthe ones that often require the best repreton, D.C., who is one of the most articulate sentation. So, do I still get asked that quesand unf linching defenders of the practice tion? Yes. A nd I have a var iet y of responsof cr iminal defence. She is also the Direces, depending on whether somebody is tor of the Cr iminal Defense and Pr isoner being hostile, or they’re genuinely cur ious. Advocacy Clinic at Georgetown Law. I like talk ing about, and, as you can tell, Fortunately, Prof. Smith was able to take I like wr iting about the motivations of a few minutes out of her busy court and cr iminal defence law yers. It’s interesting classroom schedule to answer some quesand fun and it’s a ver y big part of the work. tions about the important role of cr iminal My students, they don’t decide to not do defence, the ethical challenges of the praccr iminal defence work because it’s not sexy tice, and (as I stretched to f ind some Canaenough, or it’s not fun, da-specif ic content) her or exciting, or stimulatv iew of whether or not it ing —it’s the ethical is a good idea to wear stuf f, and the moral “What it means to be a robes in the courtroom. and those are The follow ing intercriminal defence lawyer questions, two dif ferent things, v iew has been condensed is to defend the guilty. ethics and morals, but I and edited. think it is interesting to That’s who we defend dig around, and I think U V: How does t he by and large.” sometimes to have to exquest ion of inno plain yourself. I don’t cence and g uilt mind explaining myself factor in to repreto people who ask that, sent ing people? but I w ill never apolog ize. That feels wrong to me. A S: W hat it means to be a cr iminal defence law yer is to defend the g uilt y. That’s who You ment ioned t his is bound up w it h we defend by and large. They may not be t he role of a law yer in a free societ y; g uilt y of exact ly what they are charged could you elaborate? w ith, but we wouldn’t be liv ing in a free soPHOTO CREDIT: GEORGETOWN LAW.
ciet y if law enforcement was rounding up innocent people r ight and left. By and large we are talk ing about factually g uilt y people and I don’t really care about that. That doesn’t stop me from being as passionately engaged as I was w ith Kelly’s case. [Prof.
In the U.S. in particular, my theor y of law yers’ ethics is der ived from our constitution and in particular the Bill of R ights. Those r ights, you know, only ex ist insofar as there is somebody there to protect them.
Law yers are cr itical to enforcing and upholding those r ights for all of us. So that’s what I mean by the role of the law yer in a free societ y. Moreover, in a cr iminal context, it’s the state, or the government, or the Crown, which is an incredibly power ful force. A nd all of that is up against an indiv idual accused. The importance of law yers in keeping the Crown, or the state, or the government at bay is also that’s at the heart of what we mean by a free societ y. The rule of law means nobody is above the law.
those in power. A nd that’s true, there’s some truth in that. A nd there are some things that are just not predictable. I think good law yers w ill say, “I can’t predict this”. It’s a k ind of ever-chang ing landscape. W hat are your t houghts on whet her or not it’s a good idea for law yers to wear robes, as t hey do here in Canada?
I think the best thing it probably does in a cr iminal setting is the prosecutors and defence law yers look alike. They are equally W hat about t he relat ionship berobed and dignif ied and ser ious, and mayt ween t he lang uage of law and be the jurors take them equally ser iously as lay persons who are going to be at an a result. I don’t know. extreme disadvantage in underIt also depends on how people dress. I standing what is going on when t his think it was my ver y f irst power of t he state is ser ious felony jur y tr ial brought against when I was a young pubt hem? “[The Bill of Rights] lic defender, it was a three co-defendant robWell that is true for all only exist insofar as y case, and one of the law yers. My v iew of lawthere is somebody there ber co-defendants law yers, yers is that—some ethiwho—you know how cist once referred to it as to protect them. when you r ide a bicycle the “I am a law book” Lawyers are critical to in order for your pants school of law yers’ ethics. enforcing and not to get caught in the That it is key to the lawyer’s role to explain the upholding those rights spokes you put rubber bands at the bottom?— law to people, even at for all of us.” well he apparent ly bicythe r isk of suggesting decled to court, and still fences or loopholes. We had those rubber bands don’t want to pr iv ilege on the bottoms of his pants, render ing people who already understand the law them, I can only call them clown pants beand disadvantage those who are less socause they would be all puf fy r ight above. phisticated. I thought maybe he had forgotten. I said, “Excuse me, sir, but you have those rubber Given t he complexit y of t he law it bands, they’re still on your pants.” has been arg ued t hat it is simply He said, “Oh, nobody will ever notice, the impossible for any law yer to know jurors won’t even notice.” That was a metawhat is or is not against t he law. phor for how he tried the case. Truly an inDoes t his seem accurate? competent lawyer. God bless the jury system sometimes: they knew he was a terrible lawI could of fer a k ind of Robert Cover-like yer and the jury kind of looked after his clicr itique of law as v iolence and sort of iment. That speaks in favour of robes. penetrable and chang ing of the whim of
