Defending the Indefensible

Ladjacket

Hi all,

Was having a discussion at work yesterday with a few colleagues on lunch and the subject came around to the legal situation regarding the guy who killed all those people in Norway, Anders Breivik.

Having no knowledge of the legal profession whatsoever, what is the process involved in him getting a defence lawyer - in an ideal world you would think that no one would want to defend him given the horror of his crimes. I know this is not an ideal world, but you would imagine the remit of the defence solicitor is to get him the lightest sentence possible - at what stage do ethics come into this? Again, if there are people here with a knowledgeable answer to this, please comment - I know everyone is entitled to defence, but at what stage is the crime too much?

Procrastastudy

Firstly I'm not sure how adverserial the Norwegian criminal system is. They may take a more inquisitorial approach. Putting that aside for a moment and dealing with the abstract. For the adverserial system to work you have to have lawyers who will defend people to the best of their abilities. This is regardless of the persons' crimes - if you can not do this then you should not be in criminal defence - in my opinion.

Human nature will step in for some; the publicity from defending this guy will be huge. I suspect he had lawyers queuing up to defend him. For others the need to prtect the way the system works would be enough to ensure there were people available.

The problem is if one crime is too much - what about another? Should serial killers not have a fair trial? Then peadophiles... you eventually get to the stage of someone who was doing 70 in a 50 can not get legal represenation because they injured a child. The last point is he is innocent until proven guilty. While he's admitted the act - the mens rea remains to be proven.

Ladjacket

Excellent - thanks for the insight there GCD!

I suppose as you say that the publicity from this case would be huge. And again you are spot on when you say when is one crime too far.

It just seems to me that it must be difficult for the defence lawyer to see this guy deliver an oration where he says he was doing the right thing and then seem so smug about it!

Indricotherium

If he were being tried in Ireland under MacEoin and all that do you think he could put forward a defence of provocation?

retroactive

http://www.youtube.com/watch?v=QAFttSucKH4

Any time someone asks this question I think of the above.

Procrastastudy

For me its the bit in the Green Mile.

MagicSean

You have to distinguish between what a person does and how they do it in my opinion. A defence lawyer who defends a rapist isn't a bad person. A defence lawyer who's only defence strategy is to tarnish the victim is. That man in Norway is clearly insane and should be locked up in a secure mental asylum for the rest of his days. If i were his defence I would be looking for him to be treated as insane rather than get him off. But that's just me.

NoQuarter

For me its about the professionalism. As a lawyer, it is your duty and obligation to take on whatever case falls at your feet. How could you call yourself a professional lawyer if you turn down a client because you think he is guilty before it is done? That flies in the face of the very system you work within! Not to mention that what you "think" has absolutely no bearing on what you do.

Even putting aside the notion of innocent until proven guilty, such as in a case like this where he has admitted the killings, the defence lawyer will not be putting forward any positive defence or claiming that he didnt do the killings. He cant do that nor would he want to.

If this was in Ireland I assume the defence would be looking for the verdict of not guilty by reason of insanity. OP do you think there is anything immoral about a defence lawyer who is looking for his client to be declared insane in circumstances like this? Because it seems to me that he is insane.

He probably is insane and the lawyers will do their JOB in seeking that verdict but what I do know is that if I was a member of the jury, in a situation like this, I would look past the law and look for more justice by finding him guilty of murder, whether he is insane or not, because it would be my feeling that he should go to a prison. After all, the law is not the be all and end all and is stuck to a framework and should perhaps be looked past in some extreme situations.

Even in other murders or morally inculpable cases, a defence lawyer can feel comfortable defending someone who is probably guilty because they have the safeguard of the jury to get past. If the jury find the accused not guilty, well then there is no problem and the lawyer has done nothing wrong. However, if they find the accused guilty, thats what they are there for and the lawyer will still not have done anything wrong, he will not have made any false claims or misled the jury and it is them who make the decision, not the lawyer.

The lawyer just does his job as a professional and puts forward other possible explanations.

Think of it this way, if a mob broke into that courthouse to attack the norwegian guy, do you think the police would stand back and let the mob at the guy just because he deserves it? Or would they protect him because things have to be done the right way? And are they bad policemen if they do protect him from the mob?

McCrack

This crossed my mind yesterday. This trial is an extreme example however and unusual or somewhat alien to this jurisdiction in that television cameras are permitted inside the court. This adds to the public spectacle.

At the end of the day a lawyers duty is to his client and the court, any lawyer practising in criminal law will detach themselves from the crime and concentrate on the facts/law and advise,plead and argue accordingly.

I would suspect Breivik's lawyer is well capable in that regard. It will add to his respect and credibility greatly but on the flip there will also be a huge burden for the rest of his professional career in that he will forever be associated with defending Breivik. I would also suspect there will a threat to his personal safety too.

Indricotherium

NoQuarter wrote: »

For me its about the professionalism. As a lawyer, it is your duty and obligation to take on whatever case falls at your feet. How could you call yourself a professional lawyer if you turn down a client because you think he is guilty before it is done? That flies in the face of the very system you work within! Not to mention that what you "think" has absolutely no bearing on what you do.

Even putting aside the notion of innocent until proven guilty, such as in a case like this where he has admitted the killings, the defence lawyer will not be putting forward any positive defence or claiming that he didnt do the killings. He cant do that nor would he want to.

If this was in Ireland I assume the defence would be looking for the verdict of not guilty by reason of insanity. OP do you think there is anything immoral about a defence lawyer who is looking for his client to be declared insane in circumstances like this? Because it seems to me that he is insane.

He probably is insane and the lawyers will do their JOB in seeking that verdict but what I do know is that if I was a member of the jury, in a situation like this, I would look past the law and look for more justice by finding him guilty of murder, whether he is insane or not, because it would be my feeling that he should go to a prison. After all, the law is not the be all and end all and is stuck to a framework and should perhaps be looked past in some extreme situations.

Even in other murders or morally inculpable cases, a defence lawyer can feel comfortable defending someone who is probably guilty because they have the safeguard of the jury to get past. If the jury find the accused not guilty, well then there is no problem and the lawyer has done nothing wrong. However, if they find the accused guilty, thats what they are there for and the lawyer will still not have done anything wrong, he will not have made any false claims or misled the jury and it is them who make the decision, not the lawyer.

The lawyer just does his job as a professional and puts forward other possible explanations.

Think of it this way, if a mob broke into that courthouse to attack the norwegian guy, do you think the police would stand back and let the mob at the guy just because he deserves it? Or would they protect him because things have to be done the right way? And are they bad policemen if they do protect him from the mob?

I think the defence he is putting forward is self defence under section 47 of the Norwegian criminal code.

But in Ireland could he plead provocation and have his charge reduced to manslaughter? It seems like he could?

Ladjacket

Ladjacket wrote: »

Hi all,

Was having a discussion at work yesterday with a few colleagues on lunch and the subject came around to the legal situation regarding the guy who killed all those people in Norway, Anders Breivik.

Having no knowledge of the legal profession whatsoever, what is the process involved in him getting a defence lawyer - in an ideal world you would think that no one would want to defend him given the horror of his crimes. I know this is not an ideal world, but you would imagine the remit of the defence solicitor is to get him the lightest sentence possible - at what stage do ethics come into this? Again, if there are people here with a knowledgeable answer to this, please comment - I know everyone is entitled to defence, but at what stage is the crime too much?

If Breivik had been shot in the chest and his treating surgeon was told of his crimes, assuming that there was no qualms or equivocations about mens rea, before he began to operate on him to save his life; would it be moral to let him die?

Professionals have a job to do and the integrity of the system depends on them doing that job. Just as trust with a doctor is based on the knowledge that they will ALWAYS help you; trust in the legal system is based on the knowledge that everyone is entitled to a professionally conducted defence.

NoQuarter

Indricotherium wrote: »

I think the defence he is putting forward is self defence under section 47 of the Norwegian criminal code.

But in Ireland could he plead provocation and have his charge reduced to manslaughter? It seems like he could?

Self defence would never hold up over here in these circumstances although I should say I dont know the details in any substance.

Provocation will reduce a murder charge to manslaughter but again I dont know the case well enough to comment although from what I see, I'm finding it hard to see any provocation here!

Mouldy Mary

MagicSean wrote: »

You have to distinguish between what a person does and how they do it in my opinion. A defence lawyer who defends a rapist isn't a bad person. A defence lawyer who's only defence strategy is to tarnish the victim is. That man in Norway is clearly insane and should be locked up in a secure mental asylum for the rest of his days. If i were his defence I would be looking for him to be treated as insane rather than get him off. But that's just me.

He might be clinically insane but he is not legally insane. That much has been established.

retroactive

Indricotherium wrote: »

I think the defence he is putting forward is self defence under section 47 of the Norwegian criminal code.

But in Ireland could he plead provocation and have his charge reduced to manslaughter? It seems like he could?

I would love to know how he can plead provocation. In my mind he fits neither the english nor the Irish tests.

He is not running a positive defence. The trial is on whether he is legally insane or not. Should he be found sane, he faces a maximum penalty of 21 years. Should he be found insane , he faces incarceration in a facility until he no longer poses a threat to society.

He is eager to be found sane as any ''verdict of insanity would belittle his cause.''

johnnyskeleton

retroactive wrote: »

He is not running a positive defence. The trial is on whether he is legally insane or not. Should he be found sane, he faces a maximum penalty of 21 years. Should he be found insane , he faces incarceration in a facility until he no longer poses a threat to society.

He is eager to be found sane as any ''verdict of insanity would belittle his cause.''

Is that a quirke of the Swedish system - that you have to prove your sanity and may have to give evidence in that regard? Seems incompatible with article 6 of the echr.

I though he just wanted to use the court case as a means of airing his beliefs.

retroactive

http://www.irishtimes.com/newspaper/breaking/2012/0416/breaking2.html I would direct your attention to paragraph 3 and 4 and the other articles. (The gardian has a brilliant one out today from a barristers prospective)

I'm not a Swedish legal system scholar nor am I particularly aware of its unique nuances but i'm sure we'll learn a few things over the course of this ten week trial.

Just read there are 174 lawyers acting for the victims.

Grolschevik

retroactive wrote: »

I'm not a Swedish legal system scholar nor am I particularly aware of its unique nuances but i'm sure we'll learn a few things over the course of this ten week trial.

Including that it's in Norway!

Zambia

The defence lawyer is a pivotal role in keeping in place the checks and balances that make the legal system work.

I heard an aspect to the legal system here sometimes lawyers refuse to make application of bail for clients when they see no grounds.

Example
A is on Bail for theft
A is caught stealing while on Bail
A is in show cause
A calls lawyer explains scenario
Lawyer says I cant see why your in a show cause , if you want to try feel free.
A gets locked up