Defending the indefensible

A $1 million docudrama about the late Greg King, and concerns about the upcoming trial of the alleged Christchurch mosque shooter, are focusing attention on the role of criminal defence counsel and the public vitriol heaped upon lawyers defending clients accused of particularly heinous crimes.

Defending 1
Justice Simon Moore & Professor Mark Henaghan

Defending 2
Judith Ablett-Kerr QC & Garth McVicar

Greg King
Greg King

It’s not a new issue but there are fears it may escalate as the Christchurch trial, scheduled for mid-2020, draws closer.

Senior members of the legal profession have told LawNews of the “public barrage of hatred” and “abusive communications by the truckload” that are typically suffered by lawyers defending unpopular clients.

The public, they say, often fails to understand that defence counsel don’t subscribe to their clients’ views, nor do they empathise with them. Nor should they be equated with their alleged crimes. Their job is to ensure the trial procedures are fair, that the accused is not mistreated and that the Crown has met its burden of proof.

King, a high-profile criminal defence lawyer, died by suicide on 3 November 2012, four months after securing the acquittal of Ewen Macdonald, the man charged with murdering his brother-in-law, Feilding farmer Scott Guy – a case that gripped the nation for two years.

The docudrama, funded by New Zealand On Air, will focus on King’s role in that trial.

Those who knew King well say he was clearly driven by many demons but it seems matters came to a head at the end of the Macdonald trial.

According to the coroner’s report, he had “a massive breakdown” after giving his closing address.

The report also contains comments from King’s widow, Catherine Milnes-King, who said the trial had “taken a substantial toll on him” and afterwards her husband was “publicly slated everywhere”.

The report included excerpts from a suicide note in which King described himself as “exhausted, unwell, disillusioned, depressed and haunted”.

Mosque trial
The two south Auckland barristers defending alleged shooter Brenton Tarrant – Shane Tait and Jonathan Hudson – can expect a similar level of public scrutiny, much of it likely to be hostile.

Mark Henaghan, a professor at the University of Auckland law school, had a chance encounter with the pair after giving a speech to the Criminal Bar Association earlier this year.

“I said in my talk that I thought it was the most noble thing that someone could do,” Henaghan says. “Without someone doing that job, we cannot try that man and, of course, everyone wants to try him.

“After I finished my talk, two young men approached me and identified themselves as the man’s lawyers. They said they were very nervous about the whole situation.”

Henaghan says the public needs to understand that no matter what happens in a trial, criminal lawyers are not to be blamed.

“They are playing a crucial, and I believe a very honourable, role in making sure that no matter what someone has done in our society, they have a right to be represented and a right to plead in a way that they see it themselves.

“So I hope we learn from this and we do not blame the two brave lawyers who will be acting for this man and doing the best possible job they can for him.”

Henaghan says such principles of fairness drove Greg King to become a criminal lawyer.

“All of us would want a fair trial with an openminded jury, an open-minded judge and the right to plead as we saw it. That must apply to everyone, not just to us.

“This is what Greg fought for so hard and in the end I think it was too much for him, combined with the trauma he was experiencing from the haunting faces of the victims.”

Henaghan knew 42-year-old King better than most. He taught him law at Otago University (where Henaghan was Dean of the law faculty) and over the years became a close friend.

“Greg’s father was a prison warden so Greg was able to understand, close-up, many of the unfairneses in our society [and] why people end up in prison – often because of the circumstances of their life.

“Greg really did want to do the best he could as a criminal lawyer to make sure that people got the best possible defence. I have no doubt that he achieved that but it was at a great personal cost.”

Henaghan says the pressures of being a criminal lawyer in large cases are immense.

“The crimes that Greg’s clients were accused of are often crimes that we all loathe and cannot understand where people are murdered in cold blood and people are accused of doing that.

“But often the criminal lawyer gets blamed for what the defendant is alleged to have done.”

Weatherston case
Henaghan says a prime example of this was the case in which King and Judith Ablett-Kerr QC acted for Otago University tutor Clayton Weatherston who was found guilty of murdering his girlfriend Sophie Elliott.

“Greg got a lot of criticism for that – ‘how could you do this? What do you think you are doing? Is there something wrong with you?’

“Both Greg and Judith Ablett-Kerr had to stand up to a public barrage of hatred.”

King was quoted at the time as saying Ablett-Kerr, in particular, had suffered an “unprecedented level of attack” and received “abusive communications by the truckload”.

Acid was also thrown over her car.

Ablett-Kerr told LawNews that on top of this they had to cope with a punishing schedule that left them physically and mentally exhausted.

“This was the reality of how it was for us when we did these complex trials, whether it was during the nearly four years he worked for me or later, during the cases we worked on together after he had his own chambers.”

Despite the toll, King still went out of his way to help others in their hour of need, sometimes in the most unlikely circumstances.

What his detractors didn’t know during the Weatherston trial was that he took it upon himself to help Sophie Elliott’s parents, even though he was acting for the man accused of killing their daughter.

The story has had little or no publicity, but was recounted to LawNews by Justice Simon Moore who spoke with the Elliotts after the case was transferred from Dunedin to Christchurch.

“They were sitting up in Christchurch, lonely and feeling somewhat disenfranchised every time they had to leave the courtroom because of a legal argument.

“They were left confused and wondering what the hell was going on, and Greg actually made it his business, despite the fact that he was representing the man who was later found to have murdered their daughter, [to go] up to them and explained what was happening in the process, and he engaged with them in a way that I have never ever heard of.

“In this game, because it’s an adversarial process, we tend to be adversarial so anyone who represents the enemy is the enemy and the parents of the deceased in that kind of context are by proxy the enemy,” Justice Moore said.

“But he went out of his way to look after them and engage with them in a way that made them feel they were part of a process, which otherwise they would have felt alienated from. I’ll never forget that.

“He brushed it off and just said ‘well you know they seemed like decent people and there was no harm in doing that, it didn’t compromise me in my ability to defend this man’.

“But it meant these people were engaged and treated like valuable parts of the criminal justice system they felt they were ostracised from.”

Justice Moore, who knew King reasonably well, says he’s given a lot of thought to the reasons behind his tragic death.

Dark thoughts
“I think what brought me to admire him most was his sense of social justice. But this wonderfully generous-of-spirit, kind and decent man obviously kept some pretty dark thoughts about himself and I suspect about what he was doing.

“From what I understand others have said, those demons were about securing acquittals for people he suspected were guilty and he may have struggled with that.

“If that’s the case, I don’t think there’s any doubt at all that that troubled his conscience.

“I think the other factor was that he was working so damn hard. He threw everything into his cases and I think he was completely exhausted. He was absolutely burning the candle at both ends.

“All of these things conspired in a way to twist and divert his rational thoughts.”

During his career King appeared in 11 full criminal appeals in the Supreme Court, three double murder appeals in the Privy Council and as defence counsel in about 350 jury trials and more than 200 appeals.

Another little-known side to King is the work he did behind the scenes for the Sensible Sentencing Trust.

It’s something Mark Henaghan finds ironic.

“This is the trust that despised the very people Greg acted for, but Greg felt it was his duty as a criminal lawyer to work with the trust to support them in their beliefs and to help them out.

“Greg tried to explain how the legal system works and how the system had to be fair.

“He did a lot of pro bono work for the trust and also worked with it to try and make sure the law was fair for victims as well as defendants. He did not want anyone to feel the system was unfair, whether they be victim or defendant.”

Sensible Sentencing Trust founder Garth McVicar says he had lunch with King a few days before he died.

“Greg said to me, ‘Garth I love the work you do. If I ever win Lotto, I am coming to work with you and SST.’ That was just the type of guy he was.

“He acted for some of New Zealand’s most notorious criminals and I recall him telling me that he didn’t think there would be any other occupation where success came at such a high personal cost.”

Henaghan believes what ultimately drove King to suicide was a condition known as vicarious trauma (or compassionate trauma), where those who regularly see traumatic situations can be deeply psychologically affected.

“I know from talking with Greg that he was becoming haunted by the photos of the faces of the victims in criminal trials. He dealt with trials where there would be photos of mutilated bodies which would be very traumatising for anyone.

“Greg was incredibly busy and he would not have had the time to talk to people to unravel the traumas that he was experiencing. I have no doubt this was a large part of why he ended his life.

“The legal profession is not particularly good at providing supervision and support for criminal lawyers who deal with traumatic situations on a regular basis.

“I think as a society we should learn from Greg and Greg would want us to learn from his situation. We must put our arms around criminal lawyers. We must support them much more.

“It is the toughest job and without them we don’t have a criminal justice system, yet we tend to want to kick them hard as often as we can.”

Judith Ablett-Kerr shares these sentiments.

She says the law is a demanding master and can drain the very life from us if we are not careful.

“I believe there is little recognition of the toll that major trials (particularly, but not exclusively, murder trials) takes on counsel.

“Assistance by way of counselling is regularly offered to jurors, witnesses and court staff etc but, apart from the more recent move by the law society, little consideration appears to be given to the effect on counsel.”

Ablett-Kerr says over the past 25 years these trials have become longer, more complex and more demanding with counsel having to deal with highly disturbing material.

“Added to that already-heavy burden is the fact that, in the desire to provide transparency of the justice process for the public at large, in-court media coverage has exploded. This can mean that, as counsel, and I suspect particularly defence counsel, you somehow become ‘public property’. This is not healthy or desirable.”

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