How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink? Who dropped you off at this party? At what time? But where exactly? What were you wearing? Why were you going to this party? What’ d you do when you got there? Are you sure you did that? But what time did you do that? What does this text mean? Who were you texting? When did you urinate? Where did you urinate? With whom did you urinate outside? Was your phone on silent when your sister called? Do you remember silencing it? Really because on page 53 I’d like to point out that you said it was set to ring. Did you drink in college? You said you were a party animal? How many times did you black out? Did you party at frats? Are you serious with your boyfriend? Are you sexually active with him? When did you start dating? Would you ever cheat? Do you have a history of cheating? What do you mean when you said you wanted to reward him? Do you remember what time you woke up? Were you wearing your cardigan? What color was your cardigan? Do you remember any more from that night? No? Okay, well, we’ll let Brock fill it in.
The above questions come from a lawyer questioning a woman who was raped the man who raped her, Brock was sentenced to a few months in prison. I’ll start off by asking anyone who hasn’t to read this letter because it’s necessary. Her story is extremely important and I hope that I can write what I’m about to write without taking away from it.
Brock the raper hired a lawyer to defend him in court. This is a right that we extend to criminals because no matter what a man or a woman does they are still human. I have heard it said that society forms itself around the need to lessen the damage caused by vengeance and vendettas. I have thought many times that the frustrating thing about the law and the legal system, its speed or lack thereof, is not a bug but a feature. It allows emotions to cool and time to pass. It allows wounds to begin healing. The law at its best, at the ideal that we hope it will reach and that we strive for delivers justice for all while reminding us that nothing, nothing at all can strip any of us of our humanity. Not our sins, our crimes or our histories. We are all human beings.
This is a difficult thing to reach for because reaching for it means that a good man somewhere will feel compelled to defend people like Brock the raper. It means a greedy man somewhere will have some justification to defend people like Brock the raper. It means that either of these two will have to ask the questions up there. Will have to hit at the prosecution’s case until it cracks. I don’t think it’s easy.
People have asked me since I joined university what would I do if I had to defend a murderer. For nine years I have been asked this question and had to think of an answer. This is one of the biggest moral quandaries of this profession do the guilty who we know are guilty deserve as much of a defence as the innocent we believe are innocent? The answer has to be yes. But yet how can it? How can the answer to that question possibly be yes? In what way could that be considered justice? Is that fair? Is that the world we want to live in?
It’s a question we all struggle with in our various ways. We hide behind the constitution and its provisions of fair trials for everyone. We remind ourselves that it is not the guilty person being defended but the justice system. The religious amongst us find an analogue to the story by Jesus that ends with ”….in the same way, I tell you that there will be more joy in heaven over one sinner who repents than over ninety-nine righteous ones who do not need to repent.” Many of us drink. A lot compartmentalise. You have to build those compartments in your mind. You have to shield this part of yourself from the other parts. It can’t also be the part that goes to church. It can’t also be the part that falls in love. It can’t also be the part that wants to run around with children. It can’t also be the part that sits down to have a drink with new acquaintances except that new acquaintances feel like they can ask you this question. They feel as if this deep moral dilemma can qualify as small talk and so you learn how to treat it as small talk. How to deflect it, turn it into a joke. There really is no correct answer to the question what would you do if Brock the raper came into your office and asked you to represent him? Either you would defend him or you wouldn’t and either way there’s something you betray. Your sense of rightness and justice for the individual or your sense of rightness and the ideal of justice.
I wonder if this , getting asked, happens to other people or if lawyers are fair game for reasons beyond understanding. Do doctors get asked by people they just met about the deaths of patients? About those horrible decisions they have to make between mother and child? Do they also get hounded about the things they have done that blacken their souls? Do priests? I know politicians do. Maybe it’s different and difficult because the law is a profession that arose out of human moral failings. It came about to regulate the worst impulses in all of us. Lawyers are there because people lie. We exist because people kill, steal and rape. We are important because given enough leeway you can find yourself in jail because the policeman’s wife smiled at you. The people in government lie, cheat and steal too and if we start saying that people accused of murder do not deserve a defence more people will be accused of murder. Protestors will and journalists will. Loudmouth drunks in bars will and pretty boys in clubs will. People with contrary opinions will and those whose star shines a bit too bright will too.
You see I have given thought to this question. I have been preparing myself for something like this for years and years because it would be folly not to consider the possibility of it. What I couldn’t prepare myself for is how much fun cross-examination is. I read all these books about advocacy and everyone said that cross-examination is the spice of law. That it is in that thing that’s not an art and not a science that you will find if your soul sings for the law. I can remember my first. I can remember where I was and the little droplets of sweat on my fingertips because I was so nervous. The way I felt afterwards I was ready to quit love and other drugs. There was only one thing for me and it was whatever flooded my body at that time. It was beautiful, sweet as a song, lovely as a lass. My soul sang and put down all doubts about doing anything else for at least a few years.
They pick me right up, these cross-examinations. It feels like a fight should. The way they are described in the best of books:
High, low, overhand, he rained down steel upon her. Left, right, backslash, swinging so hard that sparks flew when the swords came together, upswing, sideslash, overhand, always attacking, moving into her, step and slide, strike and step, step and strike, hacking, slashing,
faster, faster, faster . . .
Jaime could not have said how long he pressed the attack. It might have been minutes or it might have been hours; time slept when swords woke. –George R.R. Martin A Storm of Swords
It comes close to that feeling. Time almost sleeps and I’ve only been doing this a couple of months. I’m sure it’s the kind of thing that feels better and better the better you get at it. Like sex. Like sports. I even get the feeling of being lost to the rest of the world for that time. Sounds disappear and all that there is are the wits you match against the witness in front of you. What you heard from your client, what you read in your file and the answers they give to you. It’s toe work and it feels great.
Then you have a client like Brock and you know what tack you have to take if you are going to serve him to the best of your ability. There is something shameful that demands to be done but it’s been years at this and you can rationalise it. Maybe you believe that justice is worth it all and maybe it’s money that drives you. Whatever it is you have to ask a series of questions like the ones up there. Questions that will get you hated, maligned, misunderstood and maybe do the same to any defender of yours. But, you do it. You start slowly because you are scared. Respectfully because you are human and you don’t like doing what you are about to do and then you continue into that forest. Swords swing and you get lost in it. The question about how do you sleep at night that everyone asks is :how do you sleep at night when you defend a person you know to be guilty? The answer to that has been done to death. There is however at the end of that day a more difficult question. How do you sleep at night when what you did to that girl, those questions you asked her, those moments you grilled her made you feel more alive than anything else you had done for weeks? How?