Criminal defence lawyers often deal with desperate people – desperate to clear their name, desperate to establish their innocence, sometimes just desperate to avoid their guilt. And desperate people take desperate measures.
For the past several decades at least, successive governments of all colours have actively encouraged accused criminals to understand they can vastly improve their circumstances by telling tales on others. It doesn’t matter how disreputable the tale-teller may be, who they’re telling tales about, or even, it sometimes seems, how fanciful the tale may be. Just tell a good story about someone, and you can expect to win a prize.
In one much-publicised Sydney murder case up to 20 people, including three men suspected of actually carrying out the killing, were reportedly offered indemnity from prosecution to give evidence against a high profile suspect accused of ordering the hit. After three trials he was ultimately found guilty and sentenced to life imprisonment, but his conviction has been seriously questioned ever since.
A little over twelve months ago two US defence attorneys, law partners Beau Brindley and Michael Thompson, were charged with perjury by Chicago police for allegedly coaching their clients to lie in court. The prosecution relied on evidence of changing stories given by the clients under oath, and backed it up with testimony from the convicted criminals themselves, who swore their attorneys had put them up to lying at their trials.
In their defence, Brindley and Thompson’s lawyers labelled the prosecution a witch-hunt, and said the case should never have been brought. Brindley’s trial attorney Cynthia Giachetti told the court “The fact…is people lie to their lawyers. The government bases its cases on witnesses who change their stories all the time… they flip 180 degrees every day.”
She’s right of course. Almost every day, in almost every court case in every corner of the world, someone’s lying, or at least seriously mistaken, about something significant. Expecting lawyers, whatever end of the bar table they may occupy, to play judge and jury in deciding just exactly what is true and what is not, is a very tall order indeed. And relying on the testimony of self-confessed perjurers and desperate criminals to determine the truth of anything is even more problematic.
In August this year U.S. District Judge Harry Leinenweber acquitted both Brindley and Thompson of the charges against them, ruling that prosecutors had failed to prove the lawyers knew their clients were lying when they put them on the stand. The judge noted each of the former clients who had testified against their former lawyers had already “lied at least once under oath,” and some had been offered huge discounts on their sentences to say their lawyers put them up to it.
Understandably, Brindley and Thompson greeted the verdict with considerable relief. But the case has left a lot of US defence lawyers with a lingering, uneasy sense of just how vulnerable they are. Michael Thompson’s trial attorney, Edward Genson, pretty much summed up the sentiment when he called the prosecution a “scarey attack on the defence bar,” and warned “Young lawyers are not going to practise defence law if they have to be afraid.”
Chris Nyst – Gold Coast Lawyer, Novelist and Film Maker