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In defence of defence lawyers Photo: Leeuwarder Courant

In defence of defence lawyers

Does it take a ‘moral defect’ for lawyers to defend a sex offender?

Does it take a ‘moral defect’ for lawyers to defend a sex offender?

This was contended by Dutch lawyer Theo Hiddema a few years ago in an interview series called ´Kijken in de Ziel´ (A Look into the Soul’) a few years ago. If you are willing to defend the most horrendous criminals, something must be wrong with your moral compass. It’s what many people think about lawyers, and apparently even some lawyers agree with it. I believe lawyers should come up with better arguments to plead their own case (oh the irony!). A documentary about the lawyers defending a serious sex offender provided some insight into the dilemmas these lawyers were faced with, though it left the final judgment to the viewer.

Van der Groot & Anker defended Robert M. Robert M. was sentenced to 19 years imprisonment plus inpatient involuntary commitment (TBS met dwangverpleging) for having abused over 60 very young children, and for the production, possession and distribution of large quantities of child pornography. Due to the vast amount of evidence produced by Robert M. and his confessions early in the process, it was crystal clear he had indeed committed those crimes. There are few criminals who can count on less public sympathy than sex offenders, and this case was the worst we have seen in the Netherlands.

Still, the documentary shows how Van der Groot & Anker approach their client, dubbed ‘the Monster of Riga’ in mass media, with friendliness and even respect. Naturally they state that everybody deserves a proper defence, and of course defending Robert M. does not imply defending or approving of his actions. But their strategy in the case was controversial, so much so that it even angered fellow lawyers. Van der Groot & Anker pleaded that the evidence had been gathered unlawfully and should therefore be excluded as evidence – leaving only the defendant’s statements – leading to an acquittal for lack of evidence. That is where the true dilemma comes to the fore: what if the plea had been successful? What if Robert M. had been acquitted because of procedural mistakes, would that make his lawyers happy?

Saying that lawyers have a moral defect and can therefore live with an acquittal is the easy way out chosen by Hiddema, but it is unsatisfying. It implies that we’d better do away with lawyers in our legal system, or forbid them to stand up for legal rights for people that (may or may not) have committed crimes above a certain standard of heinousness. Van der Groot & Anker will certainly disagree with Hiddema, yet they failed to give a clear answer to the understandable question whether an acquittal is really what they wanted – asked by Van Nieuwkerken in the daily television show “De wereld draait door”.

I believe Van der Groot & Anker would answer in the negative: it would not make them happy to see Robert M. be let free. This would be done only in the case his rights were flagrantly violated, meaning that enforcement agencies have not abided by the law they are supposed to enforce. Hence, the rule of law, ensuring that crime is fought effectively but only with legal means, would have failed utterly regarding both its aims: crime is not fought and rights are not protected. Certainly no reason to be happy at all. The ideal world of a lawyer need not be a world in which no criminal is ever convicted – it is one in which convictions only come about lawfully.

Despite their personal disappointment an acquittal would cause, I believe that Van der Groot & Anker consider that standing up for the rights of even this perpetrator is the right thing to do, because on a larger scale this is necessary to uphold the rule of law. In any case: had they not considered their arguments morally right, they should not have brought them up. Had the judges followed their line of thought and acquitted Robert M., Van der Groot & Anker should have been able to explain and defend why they did what they did. Especially in these high-profile cases society deserves that lawyers can morally justify and explain their actions, which is why it is of utmost importance they uphold their moral compass.

1 Comment

Inge

Considering the fact that we value our law system, including the fact that everyone has a right to a proper defense, it's pretty easy to point the finger at these defense lawyers. The right to a proper defense means that someone has to do it. When someone then stands up and actually does it, does that mean he or she has a moral defect? Come on.

I believe that if you ask these lawyers as people how they feel about Robert M. they would personally strangle the guy if they could. We created this system, meaning that even though we are disgusted of Robert M's actions, we cannot morally place blame on the defense lawyers for doing their job, which is actually upholding the law that we value so much.

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