Tuesday, 23 November 2010

In defence of the Prosecuting Counsel...

Google images

Not being a Litigation Lawyer has many hazards. From the embarrassing inability to independently drape oneself in the elaborate legal toilette; to the pitiful image one presents as cerebral analyses of court orders, motions and certioraris erupt in the gathering of lawyers.
And more humiliatingly; you are de-barred quite literally during court proceedings and have to share seats with the intellectual hoi polloi in the public gallery. You do not even get to announce appearance and merely get introduced as ‘legal officer’. 
My best efforts at injecting every importance into that title usually fall flat, in the face of my more appropriately costumed colleagues. I try to remedy this by taking seats closest to the bar- that inner enclave in courtrooms, that demarcates the real actors from the spectators- and wear a poker-face to sieve the class of commoners I would be constrained to sit with for the day. Again, this ploy fails woefully when the court is filled; a litigant (or litigant’s family) wedges in beside you- ‘Abeg, bros u fit shift small...?’ The nerve! 
He settles in, and then flashes you a wide grin of plebeian camaraderie which interprets as ‘we may not be so learned, but at least we share their court’. Most times the Judge chooses this period to appear and thus cuts short the biting adjectives you would have instantly deployed in cutting the oaf to size. And he will continue the mannerisms throughout the proceedings; laughing loudly at wise-cracks, and nodding vigorously in your direction, ‘Kai! these lawyers are too much! My broda, you dey follow me see, so?’ That’s another big disadvantage of not being in litigation: I cannot determine offhand whether self defence avails for unprovoked verbal assault!

I come into the court today and brace myself for yet another bad day; moreso as there are about six criminal cases before ours. And since misfortunes never come singly, the court is filled and I am squeezed between a horde of sniffling, teary eyed females; apparently relatives of one of the accused persons.
Struggling to mitigate the discomfort; I let my eyes settle on the state counsel; who by the way is in charge of all the criminal prosecutions for the day. I naturally assume that being involved for so long in the business of jailing people, and advocating for the maximum justice untempered by mercy with a blood-thirsty tenacity would leave the average prosecutor gnarled and wizened. I generally picture them as grumpy old fellows with bulging red eyes and thickly veined necks; the grim reapers. But no, the state counsel on duty today, rose, erect in healthy youthfulness and smiled, I searched for signs of morbidity beneath, none. He had all the transparent cheeriness of a fulfilled worker...and in a firm voice that carried through all sections of the muted chambers, proceeded on his mission for the day.

I instantly warmed up to him, but I reckoned without one of the women sniffling beside me (It turns out she is spouse to one of the accused- charged for some complicated transaction gone awry) ‘God will punish this man for me! The wicked will never go unpunished!’ she kept hissing under her breath, shaking her knees in an ominous rhythm. I quickly silenced her with a muttered warning of her inevitable fate if the judge overheard her. Smart woman, she evidently understands that marriage vows do not cover “In freedom and in chains...” and promptly shut her mouth.
She looked quite schooled and well groomed, so I was curious at her reaction and walked up to her during the short recess. She was leaning on a wall, haughtily disengaged from a small crowd of murmuring well-wishers:
‘Madam; I am a lawyer. Please accept my sympathies, but your husband’s case doesn’t look so bad. And there is really no need getting all worked up at the prosecuting counsel; he is just doing his job’
‘His job?!’ She blazed ‘Why does he struggle so persistently to have them behind bars? Is that what he went to school to go and study Law for? His mates are selling properties and sealing big deals while he makes a wretched living from bringing out the worst in human nature...’
‘How so, madam?’

‘Can’t you see? Look at that old judge! He appears quite compassionate, but that wicked counsel is quick to raise fresh objections and suppress any stirrings of pity he may have...and you say he doesn’t take it personal!’
‘Madam, you judge him harshly. Somebody has to maintain the necessary balance of morality within the society, and it cannot be achieved without the fear of legal reprisal.’
‘Why then does he flog it too hard, why?’ Her voice broke again.
‘Because justice must be obtained at whatever cost...’ I was treading dangerous grounds.
‘Even at the cost of a man’s happiness? Is that the horrible thing they teach you people in Law School?’ She shook her head sadly.
‘No. We learnt how to employ our skills in various field, and we use it largely to chase money and glory. But that man you abuse is more courageous and selfless than most of us and uses his purely for justice’
‘It is not courage... he just wants the easy protection of government work’
‘You may be right, madam...but imagine if he weren’t there...every thief, arsonist and rapist will have their way and the Law will be helpless. He sets societal order in motion...’
‘Why doesn’t he leave it to the police...?’
‘Do you in all honesty prefer ‘Police Justice...?’
She paused awhile. ‘Well, I admit, that sounds like a contradiction.  But I think being a state counsel is the scum of Law Practice. I can’t help my intense ill-feelings towards him; and I am sure all the relatives of the people he sends to jail are united in that sentiment...how terribly burdened his soul will be!’

‘He is already over-burdened with the standard of proof the law requires of him...’
 ‘Which is?’
‘Establishing guilt beyond reasonable doubt...and these expensive lawyers you have hired to defend your husband are there to make that unattainable. So the odds are, they will plant adequate doubt in the judge, and your husband walks away, free.’
‘But I know my husband...he is not a bad person.’
‘The counsel shares your opinion no doubt...but, you see, he deals with facts...’
‘And fact differs from truth...?’
‘Fact is visible truth
‘God knows my husband is innocent; if you lawyers were more inspired by religion, you would not treat a man’s life and freedom merely as a matter of logic...you would hand it over to the Supreme Being...’
‘But Madam...we already did that. Didn’t your husband swear an oath...? And I guarantee you; all the Prosecution witnesses would as well. So, the Court is actually convinced that they all say the truth, unless of course they are insufficiently afraid of the Higher Powers they believe in...’
She was silent for some time...

‘But why can’t he just deliberately lose cases? It does not reduce his salary! Or does he get compensated in some diabolic arrangement of pay as you jail...
‘Or hang... as the case may be.’ I smiled
‘You mock me?!’  She turned crimson and advanced threateningly.
‘Not at all madam’ I held out placating hands ‘What I mean is that, he is the most honest of all lawyers because his worth is not measured by the money he is paid; nor by interests or stake in property or percentage of damages. He does it for justice. You are feeling this way because you are a direct party. But Justice is not emotional...’
She gave me a long stare, and walked out.

Back in the court, she switched seats and stayed as far away from me as she could. A needless enemy; for my reckless defence of somebody I never even cared about. I looked up and my eyes caught the prosecuting counsel. He sat calmly, adjusting his collar and leafing through his books. For the first time, I felt comfortable in my own skin as a ‘legal impostor’ within Justice’s hallowed chamber. My predicament is by far outweighed by that of this outcast in the eyes of many; who daily bears the heavy yoke of convincing society against its wishes, that it is as yet far from ideal...


First published in Thisday Newspapers: November 23, 2010