It’s dirty work (and lawyers get to do it)

Canadian Lawyer‘s Gail Cohen praises the late Doug Christie for representing people many lawyers wouldn’t touch:

Christie, often called The Battling Barrister or Counsel for the Damned, became notorious for his defence of some of the most reviled hatemongers in the country. His clients included holocaust denier Ernst Zundel, former Nazi guard Michael Seifert, fascist John Ross Taylor, and white supremacist Paul Fromm. Christie studied law at the University of British Columbia and rose to prominence in the mid-1980s defending James Keegstra, a schoolteacher fined $5,000 for willfully promoting hatred against Jews by teaching his students the Holocaust never happened and that a Jewish conspiracy controlled world affairs.

Christie was strongly criticized by anti-racists, had rocks thrown at him, and his office windows were smashed so many times he had to board them up. Once, someone drove a truck through his office. He was a polarizing figure, there’s no doubt. Christie, along with Ottawa lawyer Richard Warman, were the subjects of Canadian Lawyer’s March 2009 cover story “War of the Words,” which looked at the battle between the free speech advocate and the push for laws outlawing hate. Warman would not consent to have his photograph taken with Christie, going as far as insisting we note in the article that the two men had been photographed separately.

Many of his critics insisted Christie held the same repugnant beliefs of those he defended in the courts but other than his desire to separate the Western provinces from the rest of Canada, his personal beliefs were never really out there on display. Until the end, Christie insisted he was defending those who others wouldn’t. In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”

[...]

Even the professional regulator saw that Christie was willing to do what most other lawyers weren’t. When the B.C. lawyer got into trouble with the Law Society of British Columbia over some questionable subpoenas, his contribution to society was recognized. Christie was found guilty of professional misconduct but in assessing costs, the hearing panel tried to keep them as low as possible so it didn’t affect Christie’s ability to practise. “The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees.”

Whether you agreed with Christie or not, he played a pivotal role in the free speech debate in Canada. There have to be lawyers who are willing and able to fight for those no one wants to fight for. It’s the essence of a free and tolerant society. Who, now, will rise up to take his place and defend those people, even if it means possibly being on the wrong end of a thrown rock?

Actually, there’s not much doubt that Christie did indeed support the causes promoted by his extreme-right client base.  But he did what a lawyer is supposed to do: stand up against the power of the state when that state threatens to infringe upon someone’s liberty.

In most cases, this is precisely what lawyers are doing when they take on clients who have engaged in particularly repugnant behavior.  Another example: the Ohio attorneys trying to keep convicted killer Steven Smith from being executed for an undeniably appalling crime.

Condemned killer Steven Smith’s argument for mercy isn’t an easy one. Smith acknowledges he intended to rape his girlfriend’s 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.”

Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith’s actions “the purposeful murder of a helpless baby girl.”

I’m opposed to the death penalty because of the possibility – make that certainty – that innocent people will be executed.  That doesn’t mean some people don’t deserve to be put to death, however, and it’s hard to imagine what other punishment would suffice for a scumbag like Steven Smith.

That said, his lawyers have a point.  Murder is a crime requiring specific intent – the killer must intend to kill, not just harm, his victim.  Impairment by alcohol is not a defence to most criminal charges, but if Smith was so intoxicated that he couldn’t have formed the intent to kill, then under Ohio law he shouldn’t be on death row.

The state shouldn’t have the power to kill.  But if it does, at the very least it’s the lawyer’s job to ensure that this power is only carried out in the limited circumstances allowed.  Steven Smith might be the most loathsome defendant imaginable, but next time it could be someone someone more sympathetic – or innocent.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Constitutional Law, Constitutional Law (USA), Criminal Law, Freedom of Expression, Human Rights and tagged , , , , . Bookmark the permalink.

2 Responses to It’s dirty work (and lawyers get to do it)

  1. froggydude says:

    “In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”

    Well, he couldn’t spell. I hope lawyers take cases on “principle”, but if he was unable to spell, goodness knows what his thought processes actually were.

    • Andrew Bore says:

      Unless the interview was conducted by email/letter, the spelling error would have been made by Jean Sorensen or Gail Cohen, not Doug Christie.

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