Trends in Legal Advocacy

Interviews with Prosecutors and Criminal Defense Lawyers Across the Globe, Volume One

Jane Goodman-Delahunty, Dilip K. Das

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315386287
• Edition: 1
• Topic: Informatik
• Subtopic: Cybersicherheit

A new installment of the series of Interviews with Global Leaders in Policing, Courts, and Prisons, this book expands upon the criminal justice coverage of earlier volumes, offering the voices of 14 lawyers from 13 diverse locales, including countries in Africa, North America, South America, Europe, and the Asia-Pacific region. This book is intended for students and others focusing on law and legal studies, policing, psychology and law, criminology, justice studies, public policy, and for all those interested in the front lines of legal change around the world.

Featuring versatile chapters perfect for individual use or as part of a collection, this volume offers a personal approach to the legal world for students and experienced professionals.

Introduction JANE GOODMAN-DELAHUNTY DILIP K. DAS	1

Contents

Introduction to Legal Advocacy across the Globe

The Interviewee Sample

Skilled Interviewer-Authors

The Semi-Structured Interview Methodology

Institutional Insights

Summary

Introduction to Legal Advocacy across the Globe

This book and series of interviews with leading prosecutors and criminal defense lawyers around the world is designed to foster a better understanding of the global challenges faced by criminal justice leaders, and of the successes that they achieve while functioning in an increasingly interconnected and democratized world. This chapter provides an overview of this innovative series on international legal advocacy and the use of legal life histories as a forum to explore trends and the latest developments in criminal justice from the perspectives of some of the foremost prosecutorial and defense practitioners.

Biographies of criminals and true crime stories are popular, in part because they deal with the intersection of the personal and the professional. Yet comparatively little is known about the legal professionals engaged in these cases. A few prominent lawyers, such as the French former prosecutor, Philippe Bilger (2003), and private practitioner and U.S. Attorney for the Southern District of New York, Robert Fiske, Jr. (2014), have successfully penned their own memoirs recounting the high-profile cases in which they were involved. Since legal advocates themselves rarely have time to write and reflect on their experiences, views, opinions, and perspectives, a series of interviews conducted by qualified criminal justice professionals contributes to fill that gap.

The aim of this book is to document trends and developments in criminal justice systems through interviews with outstanding prosecutors, public defenders, and defense lawyers as they speak about their lives and careers in law, their training, and the culture and societal context of their roles and activities. Since the late 1930s, the interview has been recognized as a reliable and useful research method, and has been increasingly used by social scientists (Platt, 2001). Leading scholars such as the French sociologist, Pierre Bourdieu (1984/2003), endorsed the interview as a dependable means to gain access to the lived everyday world of the interviewee (Brinkmann & Kvale, 2015). Today, in many disciplines, the interview has achieved the status of a key qualitative method (Morris, 2015).

Sources of knowledge on the criminal justice system, such as textbooks on criminal justice, rarely include information about prosecutors and criminal defense lawyers, creating a dearth of information about their careers and roles (Smith, 2012). Much of the focus in prior criminal justice research has been on the judiciary. Interest in the influence of prosecutorial discretion has increased, though often within a context where judicial decisions remain the primary interest. For instance, some research has examined prosecutorial overcharging practices that exert less readily perceptible influences on sentencing practices of the judiciary (Worrall & Nugent-Borakove, 2008). An internationally renowned Professor of Criminal Law and Policy, Michael Tonry, himself a former legal practitioner, recently drew attention to the paucity of available research on public prosecutors, and almost none comparing prosecutors across different legal systems within or across countries to foster scholarly critique (Tonry, 2013). The dearth of comparable research on criminal defense lawyers is more striking. Where brief individual profiles of leaders in the field have been compiled, these are not typically comparative in nature, and do not address both the prosecution and the defense in the same book or article (e.g., Smith, 2012; Williams & Hsiao, 2010). The inclusion in this book of interviews of six prosecutors and eight criminal defense lawyers redresses this imbalance, and has generated a uniquely rich set of resources on this topic.

Public interest in legal biographies was recently confirmed by the British Broadcasting Corporation initiation in the United Kingdom of a series of interviews with eminent legal professionals for television audiences. However, most legal biographies “have focused on the lives of the elite; most often white, male, higher court judges” (Sugarman, 2015, p. 13). Perhaps in a reaction to perceptions of the legal profession as male-dominated, the dissenting opinions of US Supreme Court Justice Ruth Bader Ginzburg, which stand in stark contrast to the views of her white, male counterparts, have garnered immense popularity, reflected in a Tumblr mini-blog, and a recent book celebrating “the notorious RBG” (Carmon & Kniznhnik, 2015). This book departs from the traditional focus in legal biographies on white, male members of the judiciary, and presents the biographies of leading male and female lawyers who have made their careers as prosecutors and as defense lawyers in a diverse range of cultural and multicultural societies.

The Interviewee Sample

An important feature of this particular volume is that it does not focus exclusively on legal practitioners in British and North American jurisdictions, while a leading Canadian and United States lawyer were represented among the practitioners interviewed. In all, a total of eight chapters focused on lawyers practicing in Asian countries: China, India, Japan, Nepal, Sri Lanka, and Thailand, providing unique insights into the evolution of legal rights and adversarial legal practices in countries drawing on non-Western values and traditions. Approximately, one-half of the interviews were conducted in countries that were formerly part of the British Empire, that is, Australia, Canada, India, Sri Lanka, New Zealand, and South Africa. These chapters will hold special interest for scholars of comparative criminal law and practice in postcolonial systems. Some practitioners work in an adversarial legal system, others in an inquisitorial legal system, and others in more hybrid systems that incorporate strengths of both adversarial and inquisitorial systems.

Notably, five of the legal professionals interviewed for this book are women; two working as prosecutors and three as criminal defense lawyers. Their stories fill additional gaps in the existing literature by focusing on the lives of lawyers who are often marginalized or treated as outsiders. For example, Judith Ablett-Kerr was the second of only two female barristers in Wales, and worked as a Crown prosecutor for nine years, before rising to prominence in New Zealand, her adopted country, as a leading defense barrister. Maria Teresa Rivero Gutierrez in Bolivia started her career as a public defense lawyer, and after seven years as magistrate, she was the first woman appointed President of the Superior Court. However, it is her work as Prosecutor of Appeals leading a series of criminal procedural reforms in Bolivia during a period of transition from an inquisitorial to an accusatorial model, which is highlighted in this book. Antoinette Ferreira conducts trail-blazing work by applying criminal conspiracy theories to prosecute rhino and elephant poachers as her country turns its attention to environmental issues. The extraordinary dedication and resourceful use of human rights law by Yaowalak Anuphan and Mandira Sharma to change criminal justice practice in Thailand and Nepal have achieved global recognition.

Skilled Interviewer-Authors

The background and expertise of the 18 authors who contributed to this volume enhanced their capacity to engage the interviewees, to draw out fresh and innovative insights, and to capture the significance of their views. Among the authors are five current or former legal practitioners who established their own careers as successful litigators (Gendler, Gudmanz, Kiefer, Langthaler, O’Shaughnessy, and Wallace). Five authors are non-practicing attorneys (Bishop, Dhanda, Ibusuki, Lecamwasam, and Nolan). Some authors have worked professionally in fields closely allied with the criminal justice system, such as court administration (Langthaler), corrections management (Birdgen), journalism (Pinnock), police investigations (O’Shaughnessy), and government administration (Wijesinghe). The majority of the contributing authors brought their extensive international practice or consulting experience to the interviews, and were sensitive to comparative criminal justice issues. Many of the contributors hold academic appointments in a diverse range of disciplines, including criminology (Kiefer; Kovalov, O’Shaughnessy, Pinnock), clinical, forensic, and legal psychology (Birgden; Ma, Nolan, Zhang), law (Bishop, Nolan, Wallace), social policy (Celermajer), and sociology (Ma; Wijesinghe). Their biographies in the appendix provide further details of breadth and depth of their qualifcations and expertise.

More than half of the contributing authors interviewed lawyers whose day-to-day work was conducted in a language other than English: the six Asian countries listed above plus Bolivia in South America and Belgium in Western Europe, and half of the interviews were conducted in languages other than English by the skilled contributing authors who translated the responses specifically for this book. As a result, this volume provides a wealth of fresh information not elsewhere accessible to the English-speaking world. These features enhanced the uniquely transnational set of comparisons offered in this book.

The Semi-Structured Interview Methodology

The prosecutors and criminal defense lawyers whose careers and lives are portrayed in this book were selected by the contributing authors based on their knowledge of the context in which the practitioners worked, the lawyer’s reputation and field of expertise, and the author’s interest in that lawyer’s role, skills, and contributions to the criminal justice system. The individual interview responses are not intended to be representative of the views of other prosecutors and defense lawyers in each country in which the interviewees work. Instead, a theoretical sampling method was used to select interviewees to ensure that the relevant topics and concepts would be examined in sufficient detail (Yin, 1989). From a constructivist perspective, we fully acknowledge the collaboration of the contributing authors in the production of the knowledge gained through the interviews. Some authors chose to interview a prosecutor or criminal defense lawyer who could vividly convey a sense of his or her day-to-day work; others interviewed a lawyer with a reputation as outstanding in the field, or an intriguing or controversial figure in their legal landscape.

The goal in compiling the chapters for the book was to apply a method that allowed the interviewers to draw out the best of what each interviewee had to contribute. Life history interviews are a particular form of qualitative interview well-suited to obtaining a comprehensive account from legal practitioners of their reflections on their personal and professional experiences, and their understanding of those events. The 14 in-depth interviews in this volume comprise a form of life history, revealing each lawyer’s views of the context in which he or she works, and their motivations. The topics to cover in the interviews were provided to interviewers in the form of 25 suggested interview questions, but interviewers were permitted to deviate if important in a particular country or context. By conducting semi-structured interviews using these 25 open-ended questions, the interviewers held directed conversations with each interviewee. This format allowed them scope to digress and to fully explore the responses given by the lawyers, by seeking clarification and explanations for the responses. Interviews are uniquely well-suited to explore these underpinnings (Morris, 2015, p. 8).

Institutional Insights

The 14 lawyers who were interviewed for this volume included seven practitioners employed by government or public agencies and seven private practitioners. The interviews provided a thorough and comprehensive account, from an insider’s perspective, of how key prosecutors and defense lawyers viewed their roles, and the difficulties associated with the changing nature of their work.

Every interview report is preceded by a brief overview of the criminal justice system in the jurisdiction where the lawyer works. These synopses describe the essential aspects of the legal context in which the cases and issues described by the practitioners arose. To further elucidate the legal context, each chapter concludes with a brief glossary of key terms or concepts discussed by the legal advocate in his or her interview. The resulting chapters convey to readers how the law in the real world works (Genn et al., 2006).

By including the views of six prosecutors and eight criminal defense lawyers, this volume permits an exploration of the similarities and diferences between prosecutors and defense lawyers across multiple international jurisdictions. These interviews also demonstrate how the public interest is served by the work of accomplished lawyers in private practice. Each chapter includes the same general topic headings to generate a comparative framework and foster comparisons across chapters. As a whole, this set of interviews fills a descriptive and theoretical void in the published literature on comparative criminal justice. The diverse range of jurisdictions in which these professionals work provides a rich, cross-cultural perspective on their practice that transcends any one of the local milieux.

Summary

In sum, the book provides engaging qualitative information detailing the perspectives of 14 legal professionals at the top of their field, and an overview of the criminal justice systems in 13 different countries across the globe. The result is a rich source of knowledge and information for readers interested in the role of prosecutors and public defenders or defense counsel, and their participation in global legal systems. A distinctive benefit of life writing is the accessibility of this form of scholarship to a wide range of audiences (Sugarman, 2015). Thus, the interactions between the personal and professional depicted in these materials will appeal to a wide readership. The book will be of interest to members of the public, legal professionals, criminal justice professionals, and students of law, policy, criminology, justice studies, policing, and forensic psychology.

Australia ANNE WALLACE	2

Contents

The Criminal Justice Process of Australia

Mark Tedeschi AM QC, Senior Crown Prosecutor, Sydney

Introduction

Career

The Trial of Tim Anderson for the Hilton Hotel Bombing

The Trial of Arthur Stanley (“Neddy”) Smith for Murder

The Trial of Ivan Milat for the “Backpacker Murders”

The Trial of Phuong Ngo for Murder

The Trial of Chew Seng Liew and Choon Tee Lim for Murder

The Trial of Kathleen Folbigg for Murder

The Trial of Sef Gonzales

The Trial of Dr. Suman Sood

The Trial of Gordon Wood

The Trial of Shirley Justins and Caren Jenning

The Trial of Keli Lane

The Trial of Simon Gittany

Philosophy of Legal Advocacy

Successes and Problems Experienced

Theory and Practice

Transnational Relations

General Assessments

Conclusions

Glossary

The Criminal Justice Process of Australia

From 1788 onwards, Australia was colonized by British settlers, who brought with them the common law of England. Australia’s indigenous peoples, Aboriginal and Torres Strait Islanders, had their own well-established systems of law that operated throughout the country. Those systems were significantly disrupted by European colonization, but continue to have considerable significance for indigenous people in today’s Australia.

There are nine jurisdictions under Australia’s Federal system of government, illustrated in Figure 2.1:

• Six states: New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania.

• Two territories: The Northern Territory and the Australian Capital Territory.

• The Federal, or Commonwealth, jurisdiction, which subsists across the whole country, but only in respect of those matters in respect of which the Commonwealth government has jurisdiction under the Constitution.

The states originated as separate colonies, established by Great Britain. They combined in 1901 to establish the constitutional federation of the Commonwealth of Australia, under a constitution enacted by the British Parliament. The Federal Government may make laws only with respect to matters that are specifically vested in it by the Constitution. All remaining matters are governed by state and territory law: either statute law o...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Series Preface
• Foreword
• Acknowledgments
• Editors
• Contributors
• 1 Introduction
• 2 Australia
• 3 Belgium
• 4 Bolivia
• 5 Canada
• 6 China
• 7 India
• 8 Japan
• 9 Nepal
• 10 New Zealand
• 11 South Africa
• 12 Sri Lanka
• 13 Thailand
• 14 United States of America
• 15 Conclusion: Closing the Gap between Law in Action and Research
• References
• Instructions to Interviewers
• International Police Executive Symposium
• Index