COLUMN

Defending the right to defend

Barbara Amiel March 7 1988
COLUMN

Defending the right to defend

Barbara Amiel March 7 1988

Defending the right to defend

COLUMN

Barbara Amiel

In January’s Criminal Lawyers’ Association Newsletter, Toronto lawyer Paul Copeland launched a vicious attack on a chapter in the book Greenspan: The Case for the Defence, written by Edward L. Greenspan and George Jonas. The attack concerned a sequence of events in 1981 when a group of radical lawyers accused the 18-member Toronto police holdup squad of torturing suspects.

At the time, the radical lawyers, led by Dianne L. Martin and supported by a left-wing group called Citizens’ Independent Review of Police Activities, wanted a public inquiry into the charges. Barring that, they refused to name the officers involved, the people allegedly tortured, or give any details of the incidents to either the public complaints commissioner, the attorney general, the police or the courts. The institutions of liberal democracy were not to be trusted by them and they feared for their clients. It occurred to me at the time that public inquiries are often popular with radicals because one can make all sorts of charges without the standards of proof or safeguards that a court would require.

The holdup squad was flummoxed. How do you defend yourself against charges of being a goon torturer when your accusers are trying you in the press but won’t reveal details or evidence? They hired Eddie Greenspan to represent them.

After two years of thorough investigation, no policemen were charged. But my concern at the time, as now, was not with clearing the police. For all I knew, there may well have been goons in the holdup squad. My concern was that the police, like any accused, are entitled to proper legal representation. This attitude was not shared by the radical lawyers. Eddie Greenspan was accused of acting as a mercenary in defending the police.

This was too much for me. I wrote a column in The Toronto Sun pointing out that when Greenspan defended all elements of society from alleged pornographers to alleged murderers no one questioned his liberalism. But when he defended the police against unspecified sweeping accusations precisely in the name of that liberalism, his motives were for the first time questioned. Copeland quoted this column of mine in the January lawyers’ Newsletter and accused Jonas, Green-

span and me of intellectual dishonesty. The book’s claim that radical lawyers had a political agenda of their own was merely Red-baiting, Copeland said.

His article was taken up by the media and suddenly, last month, the radicals were coming out of the woodwork again. Toronto lawyer Andrew King was quoted as being quite appalled when Greenspan was hired to represent the holdup squad. Dianne Martin spoke of the pain of being criticized in the Jonas and Greenspan book. “There is no forum to respond. My belief in freedom of the press was sorely tested by that ugly piece of writing,” said Martin, rather ominously, to the Toronto Globe and Mail. One couldn’t help feeling that, come the day Martin saw power, freedom of the press itself would be sorely at risk. Prominent civil rights lawyer Clayton Ruby told The Toronto Star that it was most peculiar

Why should police officers publicly accused of being goon squad torturers not have the right to a good lawyer?

for Greenspan to take on the holdup squad’s case. “It is clear that he acts for the rich and the powerful,” Ruby said.

Ruby’s statement astonished me, but it seemed to me representative of radical thought. Was he saying that the rich and powerful did not deserve legal representation? That they should lose their constitutional protection and ordinary rights as citizens and should be found guilty without a trial? It occurred to me that his partner, Marlys Edwardh, is this very moment acting for the convicted terrorist Mahmoud Mohammad Issa Mohammad. Did Ruby mean, perhaps, that a doctor or lawyer —or policeman —should not have the same rights as a Palestinian killer?

Furthermore, an analysis of Greenspan’s clients would show he has only defended a handful of rich clients. But this is not the point. Before the law, there are only accused citizens. Justice wears a blind. She does not peek to see if a man is black or white, rich or poor. In any case, relative to the might of the state, every citizen accused by Her

Majesty the Queen is infinitely less powerful. And in this day and age one might go as far as to say that to be rich and powerful is more a disadvantage in court than an advantage. While few judges or prosecutors would be afraid to exercise their perfectly legitimate discretion in favor of an ordinary man, not to mention a minority-group member, most would be terrified to exercise the same discretion for someone politically, financially or socially powerful.

In 1972 Greenspan was one of a team of lawyers who defended antiwar activist Karlton Armstrong, charged with a fatal bombing at the University of Wisconsin. Greenspan defended Armstrong against extradition on grounds that a man ought to have the right to cross-examine his accusers, and the extradition procedures did not allow that. Greenspan had no sympathy for Armstrong’s politics. He did feel that Armstrong had a valid legal defence.

This pinpoints the difference between lawyers such as Greenspan and the political activists such as Copeland et al. The activist lawyers seem to me to be disinterested in the whole point of the law, namely the great impartiality of its technicalities and procedures. It is not only the substance of a case with which the law is concerned. It is seeing that every citizen, regardless of the substance of his case, is granted the same procedures and protection. Substance means a man may have committed a crime; procedure has to do with seeing he has a fair trial rather than being lynched. But activist lawyers will too often fight only if the substance of a case suits their political aims—if it involves an AIDS victim, blacks, environmentalism. They will yell about civil liberties for East Indians, but not for East Europeans. And they are not above heaping invective on an Eddie Greenspan because he is disinterested in substance and, in the best tradition of his profession, cuts through to procedure.

In his article in the Newsletter, Paul Copeland described his own politics: “I regard myself on the left of the political spectrum. I object to being described as a communist (too conservative) but rather like the undeserved term anarchist.” His politics are his own business—out of the courtroom. But speaking for myself, the one description he and his ilk put to shame is that of lawyer.