Clarence Darrow was a criminal lawyer, a civil libertarian and more.
He was an attorney for the damned, the oppressed, the persecuted, the disadvantaged.
He championed the little guy.
Mr. Darrow loathed religious bigotry. He was colour-blind when it came to people.
‘To me,’ he frequently said, ‘people are not simply white or black; they are freckled.’
Mr. Darrow always described himself as an agnostic. Others have called him an atheist-leaning agnostic. Whatever applies, Clarence Darrow would surely be up there representing the unpopular as they face
the pearly gates of Heaven the prison gates of Hell at Final Judgment.
It was disappointing to see the President elect of the USA, and his followers, assail and rebuke Hilary Clinton and her running mate, Tim Kaine, for doing their job as defence lawyers, for simply abiding by their professional and ethical obligations in advocating for people charged with crimes.
It was asserted that this rendered them unfit to be President and Vice President.
On the President elect’s logic, Atticus Finch could not get elected as President or Vice President because he represented an unpopular client facing rape charges against a white woman.
Nor could the current Chief Justice of the U.S. Supreme Court, John Roberts. Chief Justice Roberts represented John Ferguson who was executed.
John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.
On the President elect’s view, Hilary Clinton and Tim Kaine are not eligible to hold such high executive positions despite both practicing ethical advocacy in accepting cases to which they were appointed. This take on the U.S. Constitution, justice and the rule of law in the USA, especially the 5th, 6th and 8th Amendments is incorrect.
Australia is also a liberal democracy with a common law criminal justice system like the USA. Australia’s system provides a lawyer for those who transgress society’s rules and who don’t have the means to hire a lawyer.
The underlying legal philosophy is that we all have the right to a fair trial or, as is the preferred legal definition here in Australia, the right not to be tried unfairly and that a trial cannot be fair without a lawyer.
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer to compendious terms to an accused’s “right to fair trial”… Strictly speaking, however, there is no such directly enforceable “right” since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.Deane J said in Jago v District Court (NSW) (1989) 168 CLR 23 at 56 – 57
The High Court of Australia affirmed the principle in Jago in Dietrich v Queen better addressed in this commentary, ‘Trial Without Counsel: Dietrich v Queen’
Criminal defence lawyers are provided to protect those most in need, in trouble, the unpopular, the little guy, the disadvantaged.
It is always the state’s case against the defendant and not the defendant’s case against the state which is tried in a criminal case. Always. And nothing is ever clear as is generally thought. Nothing is black and white. Cases are generally shades of grey or a dirty greige colour.
In Australia we also have the the cab-rank rule which provides protection to those litigants who might be denied representation because they are shunned by society generally.
Barristers must act on a first come, first served basis, just like cab drivers just as a cab driver must drive the next person in line at the rank (hence the reference to the (“the cab-rank rule“). “…..ethically, barristers are constrained not to choose their clients.”
As lawyers we are guided by ethical (moral) obligations and rules of legal professional conduct. The cab-rank rule, by which we are restrained from picking and choosing our clients, is one of these ethical obligations. None of this means that advocates agree with or condone the behaviour attributed to the defendant. Nor do we as defence lawyers concern ourselves with community views of us, our client or the case.
Clarence Darrow is likely up there somewhere in the main halls of Heaven, an angel with wings, harp,
halo wig, hymn-book, law book, palm branch and so forth spending his days with ol’ St. Pete in advocating for wayward souls, defending them in their fight for forensic absolution from sin at Final Judgment.
There’s Justice Scalia, another dead lawyer in Heaven already on the bench at the Pearly Gates. Yes, robed,
wigged winged and haloed judging applicants for Heaven No doubt sees himself as the judging Archangel of Final Judgment!
Dissenting again I see. More on the late Scalia, J. later.