September 21, 2020

Dinner with a Criminal Defence Lawyer | Kathleen Heath | TEDxFulbrightPerth

Transcriber: Eunice TanReviewer: Tanya Cushman I'm a criminal defense lawyer.

Because of that, I have been called”the scum of the earth.

” I have been lectured by police officersfor merely doing my job.

My own grandfather, when I told him that I had my first real jobas a criminal defense lawyer, screwed up his face and said, “What do you want to representpeople like that for?” I came to criminal defense thinkingthat I was fighting the good fight, that I was standing up for the poor, the downtrodden, the oppressed against the power of the state.

But what I quickly learned is that there is another viewof a criminal defense lawyer.

One that perhaps holdsa greater deal of cultural currency.

And that's the stereotypeof the wily criminal defense lawyer – the one who would use verbal tricks, unscrupulous means, technical loopholes to make sure that undeserving, guilty criminals are let back out onto our streets.

Now, even when we're notoutright maligned, I find we're at leastsomewhat misunderstood.

When I go to social events, dinner parties – and I know my colleagueshave the same experience – I often find that I'm askeda very similar set of questions, questions that perhaps reveal to me how subtle but pervasive some of the negative viewsof criminal defense lawyers are and also betray someof the fundamental misconceptions that people hold about our criminal justice system.

So what I want to do tonight, in the spirit of clarification, is invite you all alongto a proverbial dinner party.

We've had our canapΓ©s, we've sat down for mains, the wine is blowing, and lucky you all, you've happened to be sat next to me.

And what I'm going to doover the next few minutes is give you my answers to the FAQs – the most frequently asked questionsto criminal lawyers at dinner parties.

So let's start with the really easy stuff.

No, it's not like “CSI, “it's not like “The Good Wife, ” and much as I would loveto be the next Meghan Markle, it's nothing like “Suits.

” (Laughter) Yes, I do often have to get dressedin those oversized black robes.

They are hot, they are uncomfortable, and I actually get stuck on my chairwhenever I try and stand up.

Let's move on to the more meaty questions.

And there's a classic, the quintessential that every criminaldefense lawyer is so familiar with: How do you defend a personwho you know is guilty? Now, there's a range of stock, standard answers to this – you'll find it in anyfirst-year law textbook.

It usually goes somethingalong the lines of this: that in a democratic society, everybody has a right to a fair trial; that there is a presumption of innocence; that it is for the judge and jury, not for me, to decide the guiltor otherwise of my client; and if we can't protectthose rights for everybody, then we can't guarantee them for anyone.

Now, those are important principles, and I stand by them in the work I do.

But, truthfully, I won't spend long on it tonight, because I think it's a boring question.

Criminal lawyers have been answering that for centuries.

When I'm in a dinner party, when someone asks me that question – How do you defend a guilty person? – what I like to do is flip the question.

I say to them, the real question is this: How do you defend someonewho wants to plead guilty but who you know is innocent? I can tell you now, that is far and away the more commonand pressing ethical dilemma facing criminal lawyersin courtrooms around the country.

Now, it may sound counterintuitive, but let's not forget that fightinga criminal charge is a difficult process.

It can take months, if not years, and involves complexities that trip upeven experienced criminal lawyers.

Now, best-case scenario, you're out on bail, so you're in the community.

But even then, you have a chargehanging over your head; you might be subjectto onerous bail conditions.

Worst-case scenario, you're sitting in jail, waiting for a trial date.

And when that's your reality, it becomes easy to see how pragmatismor convenience wins the day.

And add to that another ingredientthat I see only too often in my clients: hopelessness.

Just the other day at work, we had this great victory in courtfor one of my clients.

Effectively, she was acquittedof all charges.

She'd been chargedwith assaulting a police officer when, in fact, it was shewho was unlawfully assaulted in the first place.

Now, the difficult part of that casewasn't winning in court.

As soon as I saw the CCTV, I knew that we had a strong defense.

The hard part was convincing my clientto plead “not guilty” and to go to trial.

She was on bail for nearly a year, waiting for her day in court.

The thing that she struggled with the most was accepting that her voice, her story, the voice of an 18-year-oldAboriginal girl, would be believed against the wordof a police officer.

That's the hopelessness I'm talking about.

So why do I do this?Why do I flip the question this way? What's the pointI'm trying to make to you? It's that criminal lawis rarely about cunning criminals conniving with their lawyersabout how to get away with murder.

It is far more about real peoplein difficult situations who may have made a mistake but who find themselves being churned through the machineryof our criminal justice system – machinery that's often slow, incomprehensible, baffling, and sometimes just feels unjust.

So helping people through that process, however they decide to plead, that's the workof a criminal defense lawyer.

And that's work that I'm proud to do.

So let's move on to the next question – and this one's a goodie.

People look at me, and they have a glint in their eye, and they ask, What's it like to sit opposite a murderer? Now, in my career, I've sat oppositetwo people who have committed murders and one person who is allegedto have committed a murder.

My answer for my dinner party guestsis always a disappointingly boring one: it's a relatively ordinary experience.

I think when people ask me this question, what they're hoping foris the description of a monster.

They want to know what it's liketo look into the eyes of evil.

Now, there may be monsters out there, there may be villains, there may be psychopaths.

I'm yet to meet one.

And if you thoughtthat our jails were full of them, then you'd be sorely mistaken.

What our jails are actually full ofare traumatized people, desperate people, people with addictions and the kind of backstoriesthat make you understand why they started abusingsubstances in the first place.

They're full of the poor and the homeless.

They're full of peoplewho face mental health challenges or have cognitive impairments and don't have the supports around them to deal with thoseand manage those experiences.

To put it simply, they're full of peoplewho call to mind for me the old phrase, “There, but for the grace of God, go I.

” Now, I don't want to oversell it.

I'm not saying that my clients are saints; I'm not saying that they're blameless.

I'm just saying they're not monsters.

They are in fact deeply, deeply human.

And that leads me to the final questionI want to answer tonight.

Sometimes people say to me, But what about the victims? What about the victims? Now, you could be forgiven, when you walked into a courtroom, for thinking that there wasa clear dividing line between offenders and victims.

There's the baddie – he sits on one side.

His lawyer's next to him.

And on the other side of the roomis the State, the prosecutor, whom most people at least think ofas representing the victim's interests.

Visually, it's a very clear picture.

The reality, though, is far more complex.

The prosecution do not havea monopoly on victims.

Just the other day for work, I was reading a victim impact statement.

It was written by a woman whose househad been burgled by my 19-year-old client.

It was a very heartfelt statement.

She wrote about the waythat my client's crime not only robbed her family of property, it robbed them of their sense of securityand safety in their own home.

And she wrote this linethat really stuck with me.

She said that what impacted her the mostwas her loss of faith in humankind, that she felt that her childrenhad been robbed of some of their innocence.

And I don't diminishor belittle those feelings at all.

I fully appreciate the sense of anxiety, the sense of invasion that comes when your house is broken into.

But it did make me start to wonder: When did my clientlose his faith in humanity? When did he lose his innocence or his sense of safetyor security in his own home? Was it the first timehe saw his dad flog his mum? Was it when his mum started sleepingin his sister's bedroom with a chair jammed up under the doorknob because she was so scared of her husband? Was it when her husbandfinally went to jail, leaving her to raisefive children on her own and leaving my client without a dad? Or was it when his mum, who was so destabilizedby her experience of the violence, herself turned to substances and followed her husband's footsteps into jail? The prosecution does not havea monopoly on victims.

So I think it's fairthat a judge that sentences my client knows about the impactthat his crime had upon that family.

But I also think that it's critical in a just society that my client's story be heard, that his background be believed, that it be taken into consideration.

And giving a voice to that story? That's the workof a criminal defense lawyer.

So, my dinner party companions, what do I want youto take away from all of this? It's really a very simple message.

It's that criminal lawis rarely about cunning criminals.

It's rarely about monsters.

It's rarely a simple equation with good on the one handand bad on the other.

And I hope you do take this away because it has consequencesbeyond dinner parties and the popularityof criminal defense lawyers.

It matters because at their core, those misconceptionsaren't actually about me or my job.

They're misconceptions about my clients, about the worthiness of my clients.

And they're the kind of misconceptions that condition us to respond punitively, to forgo mercy, so our prison populationis only ever growing, never shrinking.

They're the kind of misconceptions that make criminalseasy fodder for politicians and make even the most sensiblelaw reform proposals an unpopular cause.

And they're the kind of misconceptions that make sure organizationslike the one I work for, the Aboriginal Legal Service, and other organizations that are dedicatedto ensuring equal access to justice, that those organizationsare chronically underfunded, as too are our social services, as too are any programs that focuson rehabilitation over punishment.

At their deepest level, they are misconceptions that deprive us of the capacity to respondwith empathy and with compassion to people who have, or are allegedto have, committed crimes.

And for those reasons, I hope we can correct them.

Thank you.


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