Sorry No Cure: my first effort to defend an accused lawbreaker in court

When I was a second year lawyer, my senior handed me a criminal brief.?It was for someone who had been charged with a minor road traffic offence.

“Don’t get too excited,” my senior told me.?“It’s a PG case.”

“PG?” I asked.?“Parental Guidance? What did he do in his car?”

“Idiot,” my senior explained.?“He’s pleading guilty.?Just mention the case in court.”

“Mention it?” I asked again.?“What do you mean??Bring it up in casual conversation with the judge?”?As a newbie, I imagined striking up a chat with a judge and then saying, “You know, your Honour, it’s funny you were speaking of that topic, because that reminds me of a case I would like to mention.”

My senior patiently educated me on how to mention a case.?“The client is going to plead guilty.?I need you to adjourn it so that I can prepare a mitigation plea.”

“Right,” I said.?“I can do that.?I’ll say that the client is pleading guilty…”

“No!” exclaimed my senior.?I was puzzled.?Did I get something wrong again?

“Never, never, never say that your client is pleading guilty until he actually does so.?Otherwise you’ll compromise his position,” my senior said.?“Just say that the client will be ‘taking a certain course of action’.”

“A certain course of action?” I said.?What certain course of action??What if the judge thought that my client was going to run away??One last taste of freedom?

“The judge knows what you mean,” my senior said.?“It’s a code that lawyers use when they want to tell the judge that their client is going to plead guilty, but they don't want to actually say it before it happens.”

"It's a legal spoiler alert?" I asked.

My senior muttered, "idiot" as he walked away.

* * *

In the Subordinate Courts that afternoon, I waited until all the grizzled veterans had ‘mentioned’ their cases.?Then I stood up and explained that my client wanted to take ‘a certain course of action’.

The District Judge looked up.?“He wants to plead guilty, is it? Adjourned…”

Plead guilty? I panicked, and interrupted the Court.?“No, your Honour, I didn’t say my client was pleading guilty.?I mean, he could be, but on the other hand he could be claiming trial.?We don’t know.”

The District Judge said, “You said he’s taking a certain course of action? He wants to plead guilty?”

“I… No, I’m not saying that.?He has a certain course of action in mind, which he intends to take.”

The District Judge looked at my client.?“Are you pleading guilty?”

My client looked at me.?“Am I pleading guilty?” I told him, "Later."

I told the District Judge, “I have to take instructions.”

“Adjourned four weeks,” said the District Judge.

It was not my most glorious moment.

?* * *

When I returned to the office, my senior told me that I would make the mitigation plea, instead of him. He had another case to deal with, I mean "mention".

I was overjoyed. This was my big moment. I would move the court to tears with my mitigation plea.

I began by reading all the available textbooks on theories of punishment.?It was one of the rare exam topics that I had spotted in law school, and I still kept all my handwritten notes.?I assumed that the District Judge would be familiar with Benthamite utilitarianism and Kantian retribution, and I wondered which theory he would subscribe to.

Would he belong to the retributive school??If so, he would believe in “an eye for an eye”.?That type of theory might apply in a murder, where the convict would himself be put to death by the state.

But it was unlikely to work in my client’s case.?He had driven 30 kph above the speed limit.

What would be an appropriate retribution?

Should he promise to drive 30 kph below the limit for a week, as a form of payback?

I sighed.?Retribution seldom worked in practice.?I remembered reading about a 24-year-old from Ohio, United States who was convicted of violating the city’s noise ordinance.?The judge offered to reduce the normal fine of US$150 to US$35 if the defendant agreed to listen to 20 hours of classical music.

Fifteen minutes into the sentence the rap music fan changed his mind and paid the full fine in order to end his probation.?Clearly he had suffered greatly.

In my case, I wondered if the District Judge believed in deterrence.?That has been an ever-popular theory, especially for the old and the old-fashioned.?In Elizabethan times, drunks were punished with “the drunkard’s cloak”.?The drunk was forced to don a barrel and wander through town while the villagers jeered at him.?It might have deterred Englishmen in Elizabethan times, but Singaporeans along Boat Quay on Friday nights are a completely different proposition.

In the course of my research, I came across a little-known theory of punishment: the supernatural one.?The mayor of a village in south west France has banned residents from dying.?The mayor issued the unusual edict when it became clear that there was no room left in the overcrowded village graveyard in the village of Sarpourenx in the Bordeaux region.?In an ordinance posted in the council offices, the mayor told the residents that “all persons not having a plot in the cemetery and wishing to be buried in Sarpourenx are forbidden from dying in the parish".

He added, “Offenders will be severely punished.” However, the nature of the punishment - apparently a fate worse than death - was not specified.?

My favourite theory of punishment is incapacitation.?The offender’s ability to commit further crimes is removed.?That can be done in many ways: a rapist may be castrated, or a football hooligan banned from attending matches.?A recent case in Arizona illustrated this to the extreme: a teacher with no prior convictions was sentenced to 200 years in prison for possessing 20 obscene photographs.?And we think that we Singaporeans are tough on crime.

My week-long research into sentencing principles was interrupted by my senior, who asked why it was taking me so long to write a mitigation plea.?

“It’s because I am trying to blend an argument for rehabilitative punishment with one that has restorative overtones for the state,” I explained.?

He called me an idiot again, and proceeded to explain the ingredients of a classic mitigation plea.

First, my client would have to express remorse.

“What aspect of sentencing theory is that?” I asked.

He looked at me as if I was speaking Martian, and said, “Your client has to say sorry.?And that he won’t do it again.”

Next, my client’s background must be stressed.?He had a clean record.

I said, “You mean I should point out to the court that my client is not a recidivist?”

My senior replied, “I don’t think his religion matters all that much.”

Finally, my senior told me to stress that my client was a sole breadwinner.

“Sole breadwinner?” I asked.?“What’s the relevance of that? You mean if his wife is working, the state should punish him more severely??How is that justice?”

My senior sighed in exasperation, “Just say that he needs his car to earn a living, he’s very sorry and he has a clean record.?Forget all your stupid theories of punishment.”

* * *

Ignoring my senior’s advice, I went to the next hearing with a 65-page mitigation plea and a basket of bound authorities.

“You again?” said the District Judge.?I tried not to let my disappointment show.

For the next 45 minutes, I expounded on the history of punishment, the parliamentary speeches on the Road Traffic Act and the fact there was no need to sentence my client at all as he had already seen the error of his ways.

It was a dazzling performance.

There was not an open eye in the courtroom.?I ended with a heartfelt plea to his Honour to let my client off with a stern warning.

The learned District Judge said, “$500 fine.”

I felt pleased.

Then, I realised that the next 3 accused persons also received the same $500 fine for the same offence.

And none of them had lawyers.

My great mitigation speech had no effect at all.

* * *

As I left the courtroom, a man in the queue to go in gestured to me.?“Hey, lawyer, I want you to represent me,” he said.

I felt pleased.?At least one person had paid attention to me.

“I don’t normally take walk-in clients, but I will accept you,” I said.?“Just tell me one thing.?Why did you pick me?” I asked, shamelessly fishing for a compliment.

The man said bluntly, “The policeman there said those with lawyers can go first.?And you look like the cheapest one.”

(Published in the Singapore Academy of Law's magazine "Inter Se" Jan -June 2009)

#crime #lawyer #punishment