18 May

Pull the Plug

Published by MacDoctor on May 18th, 2009
5 Comments »

Scientists are now using lawyers in their experiments, rather than rats. This is because:

There are fewer rats than lawyers, and they are harder to catch.
There are some things that even rats won’t do
Scientists often formed emotional attachments with the rats.

OK, so it’s a joke, but it explains why Simon Power can suggest changes that will radically reduce lawyers incomes, and the only people objecting are lawyers. You wouldn’t get that overwhelming lack of sympathy of it were doctors we were talking about. Yet, should you be foul of the law, a lawyer would be as important to you as a doctor would be should you be ill. I suspect that the reason for the difference is two-fold. Firstly, the doctor did not make you sick in the first place, but lawyers formulated the law. Secondly, one does not deliberately become ill, whereas the perception is that people deliberately choose criminality (I stress that this is a perception only, not the reality). This apparent defense of the indefensible in an edifice of their own making, gives the impression lawyers are self-serving and venal.

Unfortunately, they do themselves no favours with their defense, which is to blame the police:

“Police “almost routinely ignored” requests for disclosure.

“Courts were also being deliberately overbooked, in the expectation that some cases would not proceed.

“Mr Rogers said police were also “overcharging” defendants, who had to make repeated appearances for charges to be agreed to, using means such as plea-bargaining.”

Let’s see if I understand these arguments correctly. Firstly, police do not like to give away their game plan to defense lawyers. No surprises there. I have been a prosecution witness on a number of occasions. Given the defense lawyer’s tendency to nit-pick at the prosecution’s case rather than develop a proper defense scenario, I can’t say I blame the police.

Next, the police are overbooking because some cases do not proceed. Again, given the defense lawyer’s tendency to delay plea bargaining to the last minute, I can’t say I blame them.

Finally, they blame the police for “overcharging” criminals. This is nonsense. It is the prosecution’s job to try to get the maximum penalty for the crime committed. It is the defense job to reduce this as far as possible. Somewhere, depending on the client’s guilt and nature of the crime, these should balance out.

Someone should also let the Criminal Bar Association know that the public perception of their argument is that they are blaming court delays on the police for trying to put criminals away for a long time. Seeing as the majority of New Zealanders believe that we are currently too soft on criminals, this is unlikely to endear them to the public.

Peter Creswell at Not PC makes the two-fold suggestion of a public defender’s office and a clean up of the statute books, both excellent ideas. The only pitfall to avoid in a public defender’s office is the incentive to do the minimum for a client. This can be avoided by ensuring there are sufficient public defense lawyers (overwork is the commonest cause for poor quality work) and having a payment incentive scheme in place that rewards good work.

No-one would argue with Peter that the statute books are a mess and in need of a radical clean-out. Any time Simon Power gets the urge to go spring cleaning would be fine with me.

The other change that Power has mooted is the moving of the right to a jury trial from a prospective sentence of three months to one of three years. As jury trials are extremely expensive, this would undoubtably save millions a year. The legal profession expresses its doubts about this:

“Leading defence lawyer Gary Gotlieb said it was always better for 12 people on a jury to make decisions on a defendant’s charges than a single judge whose views may have become entrenched in the legal system or “cynical” during years as a lawyer.”

Translation: It is much harder to fool a jury with specious arguments than a “cynical” judge.

I think the argument that a jury trial is somehow more reliable than a single judge is dubious. It is a fairly simple thing to monitor judges for bias in both judgement and sentencing. Countries using the Roman-Dutch legal system do not have juries at all and do not seem to produce legal travesties in any great number (on the other hand, communist and islamic countries also do not have juries, so clearly this can be abused if the law is allowed to become a political or religious puppet). Nevertheless, Simon Power needs to be more cautious in this area than the other, but I am sure, being a lawyer himself, he is aware of that.

There is obviously a severe blockage in the legal system caused predominantly by excessive legal aid and pointless legal rules. Power is to be commended for his determination to pull the plug on this and let the backlog drain. Just so long as, to continue the analogy, the baby remains in the bath at the end of it.

Add a Comment