Sunday, 16 August 2009

Just doing their jobs

This weekend has seen an odd sort of charm offensive by the legal profession, in the wake of the Clayton Weatherston trial. There was this article: Judith Ablett-Kerr - fervent defender of justice for all. And then there was another, describing an email to Ablett-Kerr from an Anglican priest which was released to the media. The email, which described Weatherston's defence as abusive towards Sophie Elliot and her family, was 'ignorant and idiotic' according to Greg King, who assisted with Weatherston's defence.

The tenor of these articles seems to be that anything done by a defence lawyer, within the confines of the law, is not just OK but noble - it's in the defence of 'justice', after all. This view absolves the legal profession of any ethical responsibility for considering the consequences of their actions. Defence lawyers can plough ahead like careerist automatons - any abusive or victim-blaming argument is dignified simply because it occurs in the context of a courtroom. Judith Ablett-Kerr is quite smart enough to know that the victim-blaming defence makes life just that little bit harder for any woman seeking to escape an abusive relationship.

Lawyers don't bear responsibility for the broad set-up of the justice system, but nor do they have exploit it. They are human beings like the rest of us, and they bear the same responsibility to act in ethical, socially responsible ways. There's an important societal debate to be had about the provocation defence, and its role in upholding violence against women and gays. Rhetoric from lawyers about the fervent defence of justice simply works to support a status quo which excuses violence against certain segments of our society. Here's hoping that
Ablett-Kerr and her colleagues can put aside this rhetoric for a time, and play an intelligent and ethical part in the provocation debate.


Hugh said...
This comment has been removed by the author.
ms poinsettia said...

I've actually been a little concerned at the vitriol directed Ablett-Kerr's way. Ultimately Weatherston is responsible for the hatchet job on his victim's character - and in all likelihood I imagine Ablett-Kerr didn't advise him to take the stand. Whilst a hideous defence, Ablett-Kerr - from what I saw on the news - didn't seem to be particularly vehement in her defence or aggressive in her approach. And I can't help but think that if Weatherston had not been able to get a lawyer (or a proficient lawyer) prepared to run the defence he wished, the damage to the Elliott family could be even worse in terms of appeals etc. I think the fact that it's Ablet-Kerr far more than Greg King who's bearing the brunt of criticism, in the form of threats and acid on her car, is to do with her gender, as King has noted.

Brett Dale said...

Why didn't Kerr, tell her client to stop acting the way he did during the trial?

Surly she knew hes hurting himself in front of the jury?

I mean the whole defense seemed to be thought up by some rookie Lawyer.

Julie said...

Lawyers have to take and follow the instructions of their clients. If Weatherston wanted to be on the stand (and it looked to me like he wanted that very much) and wanted to run that defence (ditto) then Ablett-Kerr was obliged to follow his instructions.

For all we know she did say to him "that's crap and you shouldn't do it".

My job used to be a bit like being a lawyer. Very rarely I have had to represent someone who wants to run a line that I think is stupid, pointless, and/or likely to make things worse. I can advise them of that, but at the end of the day it's their choice as it's actually their case not mine; they are the one in the gun, and they are the one that will bear the consequences.

Even lawyers can't save awful clients from themselves.

portia said...

I think it's likely Weatherston himself had a big hand in his defence, especially his intention to take the stand. Perhaps Ablett-Kerr anticipated how much damage he would do his own cause, and was relieved when she couldn't talk him out of it (as was her duty to try).

Unfortunately for us all, abusive victim-blaming is within the law, and if lawyers shielded people from that reality by not going there, there would be little impetus to change the law. If Weatherston had not employed the provocation defence, would the government be doing away with it right now? As for garden variety victim-blaming, each egregious, disgusting case brought to the public's attention brings us closer to the day when such defences will be restricted. The rule of law is more certain than the rule of decorum.

Anna said...

I had a lecturer once who said J A-K had a history of defending men accused of sexual violence, including against minors, using variants of the 'she was asking for it' defence. If that's the case, she's certainly not the only one - I suspect the ability to psychologically destroy someone face-to-face is one of the things that makes someone a top-flight lawyer. I wonder, though, if it's actually more palatable to a jury when a woman lawyer does it, because it disguises the misogyny a little bit.

Weatherston was certainly the ultimate author of his own demise, but some of the 'evidence' put forward - Sophie's supposed crush on her lecturer, her visiting another man's Facebook profile immediately after Weatherston's, the contents of her diary - don't seem entirely like things Weatherston wouldn't have known about, and therefore couldn't have been provoked by. They look suspiciously like things that would have been discovered during the defence's preparation, and construed in a way negative to Elliot. That looks more like character assassination to reduce sympathy for the victim, which is something separate from a provocation defence. Weatherston may have instructed his defence to attempt to assassinate Elliot's character - I don't know where a lawyer can draw the line and say something isn't ethical or relevant. In an adversarial system (which rewards those lawyers most able to be adversarial), there's not much incentive to pay attention to ethical niceties, and unless the profession takes an ethical stand against it, there will be an incentive to elide the difference between provocation and character assassination. This was brought home painfully by the defence lawyer for Ronald Brown (gay man bashed to death in his home) - he spoke at length in his summing up about Brown having a 'dark secret' he'd spent his life concealing, ie his sexuality. There was just no need for it - the provocation defence (wrong as it would still have been) could have been run in this instance without the explicit homophobia, and I'd be surprised if the 'dark secret' argument was the defendant's idea.

PS I had no idea J A-K had been targeted with threats and violence, which I find horrifying - and I agree there's probably a gender element. Having said that, I don't much care for Greg King either - or indeed anyone who's prepared to make a living out of harming others, even when a broader system condones it.

Boganette said...

She wasn't forced to defend Clayton Weatherston. And she didn't have to attack Sophie Elliot's family.

She chose to do both. Her choice.

And I don't think the fact that she's a woman has much to do with it at all. She was on the news each night ripping Sophie Elliot's family and reputation apart - therefore she's the recognisable one not King. If he had have been the one doing it he would have been the one people talked about.

Though I suppose I did wonder how a woman could put forward that defence. But maybe I'm sexist for thinking that.

Anonymous said...

Agree with Boganette about Ablett-Kerr ripping Sophie Elliot's reputation apart - not too mention the comment that Sophie Elliot's mother was mistaken about the events that awful day.
But sadly Ablett-Kerr was not doing anything abnormal for a criminal barrister, ie defend your client. The blind defence of people (often with convictions as long as your arm), is the reason why at law school I had no intention of ever being a criminal barrister.

Trouble said...

Lawyers have a thing called the cab rank rule - you don't pick and choose your clients, you take them when they come to you providing the case is within your expertise and you have the capacity. It's not a choice, it's a civic duty, and an important check and balance against the power of the state against the individual. Defence lawyers aren't the pack of criminal-sympathisers that talkback land paints them out to be - it's a job that someone has to do. It's probably only something you could do wholeheartedly if you believed in that principle over and above the things your client has been accused of doing, or the way they conduct themselves in court.

You wouldn't want a doctor refusing to treat someone because of his or her moral principles - same applies here.

And sorry, but it is kind of sexist to hold female lawyers to different standards of what defences they should run. Call out the legal system for enabling it, not the individuals who operate within the system.

Boganette said...

Hence the reason why I said 'maybe I'm sexist for that'.

I'm not saying a lawyer should turn down a client. I'm saying they should act ethically and honourably.

To give an example - a journalist is told day in, day out to 'get the story'. A journalist could get the story by turning up at a murder scene and quizzing relatives the moment they find out a family member is murdered. They could take photos through the windows at the crime scene. They could tell the relative of the victim about the murder before the police got there so they could scoop the other papers. That would be a way of getting the story first.

But it's also completely morally fucked up and I don't know any journalists who would actually do it.

Journalists - as do people from all sorts of professions - make choices every day in the course of their jobs.

The might choose to wait before they publish the name of a dead person to ensure ALL the family has been told. Even if another paper has already printed the name.

If a journalist fucks up they're held accountable. You don't get to say 'hey I'm just doing my job'.

As human beings in any job we do we're supposed to act in an ethical way. Lawyers should have to as well. Lawyers like Ablett Kerr hide behind that 'honourable' label when what they're doing is as far from honourable as you can get.

Kerr could have used another defence. And she didn't have to act so horrifically towards Elliot's family.

Her choices weren't 'her duty'. It's her job and just like everyone else she can choose to act 'ethically' while working or not.

Trouble said...

Lawyers have codes of ethics, probably stronger ones than many other professions - you can be disbarred for breaching them. They're mainly around serving your client's interests to the best of your ability and respecting the law. I've not heard any suggestion that the lawyers in the Weatherston case did anything questionable by those standards.

Hugh said...

Kerr could have used another defence.

No, she really, really couldn't. A lawyer must follow their client's instructions. She could tell him she thought the provocation defense was neither a good strategy or ethical, but if he insisted, she didn't have the right to disobey him.

If she'd not used the defense Weatherston instructed her to, the result would have been a mistrial.

It seems that the idea that lawyers should refuse to defend clients for ethical reasons would lead to people like Weatherston being forced to defend themselves. Now I'm getting the sense that not everybody here would see that as a bad thing, but I think it's worth noting that that's the case.

Boganette said...

Journalists also have a code of ethics. And complaints can be made to The Press Council and the BSA.

I'm not suggesting she breached the standards of her own industry.

I just think she acted deplorably as a human being.

In the examples I gave about journalists - most of those might not breach the code of ethics most newsrooms have. But they're still morally and ethically wrong.

Either way she shouldn't be being threatened or abused. Just as she shouldn't be labelled a crusader for justice over her actions defending Weatherston.

Hugh said...

I'm not sure the comparison to journalists is that valid, Boganette. Journalists do not assist people in asserting their rights. Not having a journalist in one's service is very rarely the difference between freedom and imprisonment.

I don't think anybody, not even Ablett-Kerr herself, is claiming she is a "crusader for justice".

By saying that she acted deplorably as a human being you're effectively saying a lawyer approached by a client like Weatherston has two choices - be a deplorable human being, or deprive the person approaching them of the best defense possible.

Now I can understand that to some people the right to the best defense possible is not as important as the right to not be defamed, or is not even a right at all, and I'm beginning to suspect you (and most other commenters here) are one of those people. That's a valid position to take - although I do wonder if you would apply it were the lawyer to decline to represent a client on grounds that you are less personally sympathetic to.

It's one thing to say that Weatherston deserves to be punished by the legal system; it's another thing to say that he doesn't deserve to be allowed to defend himself in the way he feels is most effective.

Boganette said...

I kind of think I'm saying the same thing over and over again and kind of taking over this post (and getting less eloquent as I go along!) so this will be my last comment.

Hugh - Yes journalists and lawyers are different. No I'm not saying someone shouldn't have the right to a defence or the right to a fair trial.

Ablett Kerr is in my opinion being painted as a crusader for justice by King and other lawyers and commentators. I don't believe she is above criticism simply because she's a lawyer.

I think she went too far in defaming Sophie Elliot's name and her family. I think basically lies were said in court - at the very least the truth was stretched.

But provocation is being scrapped so the Ablett Kerr and Weatherston saga hopefully won't be repeated in court again.

That being said I would hire her in a second if I had killed someone because she'll do anything morally correct or not to defend me. And I'm guessing that's the best type of lawyer if you're in serious trouble.

Brett Dale said...

I'm guessing Kerr will do anything in power to stop the Provocation law from being scraped.

Her bread and butter depends on it, from what I have been reading.

Anonymous said...

I believe she is a crusader for justice. It's very easy to represent a client that you like. It takes moral courage and faith in the rule of law to provide a defence to one you do not like. I speak from the experience of working in an international defence team for a high profile war criminal - I wonder whether you think I'm a deplorable human being? The evidence laws surrounding the deceased plus the peculiarities of the provocation defence have led to this courtroom debacle. The rules of evidence are not the fault of AK, and if she did not use them to their full advantage she would not only have been acting unethically as a lawyer, but in imposing her own moral conscience on an innocent client (which he was at the time she mounted the defence, innocent until proven guilty). This would be the beginning of an "oligarchy of lawyers".

stephen said...

Suppose no lawyer did take Weatherston on, and he did have to defend himself. The ensuing clusterfuck would have been enormously more offensive and outrageous.

Setting limits on the kind of defense that can be mounted presupposes that we can know for certain the very things we have trials to find out.

Yes, what happened was horrible and in many ways unjust, but some of the suggestions in this thread would be even more horrible or more unjust. With some kinds of awful event, the awfulness leaches out and we just contain it as best we can, but we can't make it go away.

"I would hire her in a second if I had killed someone"

Who would you hire if you hadn't killed someone? I should think she'd still be a top choice... what you said sounds pretty close to the talkback assumption that accused people are always guilty and defence lawyers just get them off what's coming to them.

AWicken said...

Oh goody - journalists don't "ambush" people for a reaction, photographers don't snap lascivious pictures of dying people or crime scenes, and neither make stuff up.

Lucky that.

As for lawyers - well, from non-lawyery experience the problem with trying to help massive jerks is that they insist on being massively jerky and cannot see that it's only going to make things worse for them in the long run. Weatherston's a super-massive jerk.

J A-K should be thanked for at least not giving Weatherston more excuses to appeal ad nauseum (although I'm sure he'll think of some way to continue publicly being a massive jerk).