Of Lions and Lawyers

Walter Palmer killed Cecil the lion. According to media reports, Cecil was lured from his sanctuary by food and then shot by Dr. Palmer with a crossbow. The shot didn’t kill the lion; Dr. Palmer and his guides tracked the lion for two days and killed him with a gun (New York Times, July 28, 2015). The response to Cecil’s death on social media was overwhelming. Palmer received death threats, his home was vandalized and his dental practice shut down.

The problems with mob justice in an Internet world have been explored elsewhere, including in relation to the Palmer matter (see, e.g.: From Gamergate to Cecil the Lion). My thoughts here relate to a specific aspect of the problem with mob justice – the absence of the lawyer for the defence. In particular, the absence of a person who does what a defence lawyer ought to do for her client.

A defence lawyer does three (amongst other) important things in representing a client in a criminal trial. The first is that she presents the client’s position to the court. She provides the client’s version of events, or explanation for what happened. She constructs an alternative narrative that, ideally, will raise a reasonable doubt about her client’s guilt. The second –particularly where the client doesn’t have much of an alternative story to tell – is that she challenges the case presented by the Crown. She notes its inconsistencies, witnesses’ lack of credibility, the alternative scenarios the case could support or wrongful conduct by the authorities in making the case. She challenges the veracity of the Crown’s narrative to try and raise a reasonable doubt about her client’s guilt. Third, and most importantly, she ensures that the client’s position, and the weaknesses in the Crown’s, are taken into account in assessing her client’s legal culpability. Obviously in doing so she relies on the justice system to respect its own systems and procedures, but she also makes whatever arguments she needs to in order to ensure that it does so, and that those procedures and structures allow her client’s case to be heard. She doesn’t just tell her client’s story; she makes sure that someone listens to it.

In the case of Dr. Palmer, a lawyer acting on his behalf could present evidence about what he knew about the hunt, about his reliance on the guides he retained, the benefits that game hunting arguably provides to the maintenance of African wildlife (See, e.g., New York Times, August 10, 2015), about the respect hunters say they have for the animals they hunt. The lawyer could also challenge the case against Dr. Palmer, not just its factual accuracy but also the legitimacy of people who happily eat bacon from pigs raised in factory farms acting outraged by the death of one lion. Not to argue that two wrongs make a right, but simply to suggest that people seeking to impose dire consequences for bad acts need to make the case that those acts are morally distinct from actions people (including themselves) routinely engage in, and that in this instance that case is not as obvious as they claim. And of course a lawyer representing Dr. Palmer would require that people actually listen to what he had to say, and consider that perspective before judgment.

I am not endorsing the case for Dr. Palmer. But a defence lawyer doesn’t endorse his client’s case either; he simply makes it. And until that case is made and listened to, the judgments we make about someone like Dr. Palmer – whether moral or legal – are fundamentally suspect. They are suspect factually, but they are also suspect morally, because they assume that Dr. Palmer has no story to tell, no account to give of himself and his actions. And that sort of assumption, as David Luban has emphasized, denies Dr. Palmer’s dignity:

Certain ways of treating people humiliate them; humiliating people denies their dignity. One of those humiliations consists in presuming that some individuals have no point of view worth hearing or expressing, and that is tantamount to denying the ontological heft of their point of view (David Luban, Legal Ethics and Human Dignity at 72).

A Minnesota dentist who killed a beloved lion may not seem like the person whose troubles should exercise us. But justice matters even for those who seem unsympathetic upon first consideration. Further, this is about more than Dr. Palmer. It is about the kind of society we live in, about its justice and fairness. It is about the extent to which effectively penal consequences can be imposed on people without the benefit of the protections of law, specifically legal representation, and the challenges this poses for the creation of a just and fair society. And the circumstances of Dr. Palmer also permit reflection on our commitment to making robust and meaningful representation available to persons charged with a criminal offence in Canada. Do Canadian criminal accused have available to them the kind of legal representation that I’ve suggested to be necessary? Given chronic issues with respect to the adequacy of legal aid funding (see, e.g., Globe and Mail, August 14, 2015), there is some reason to suspect that they do not.

Dr. Palmer has suffered retribution, but he has not experienced justice. And the question that worries me is: who else will suffer – or has suffered – the same fate?