Theater of the Absurd.

Is there something in the water that trial lawyers drink?

First the prosecution claims that the Urewera Four and their merry band of role-playing wanna-be commandos were in the bush training for urban guerrilla warfare and posed an imminent threat to New Zealand’s peace and tranquility. The defense answers that all the gun play was just a wanaga exercise designed to train people for private security jobs so that they could move off the dole (even though all of the original defendants were well-known Left activists of various stripes, and several had jobs). Then Tame Iti’s lawyer sums up his defense by claiming that Iti is comparable to Nelson Mandela in the historical scheme of things. WTF?

Are these lawyers high? Is there something about the High Court that brings out the hyperbole in barristers? Do they think that juries are idiots? Or do they think that by offering up a mountain of bluster that the jury will not differentiate between smoke and fire? One thing is clear–the lawyers in this case clearly have Ph.D.s in argumentation: they Pile it High and Deep.

The sad fact is that after more than a million tax-payer dollars have been spent on punitively prosecuting some deluded and/or foolish people for acts that are otherwise commonplace in rural New Zealand, acts that happen on a weekly basis, we have been saddled with a four year court process ending in a trial in which both sides make patently absurd claims to bolster their respective cases.

Whatever the outcome of the trial, if this is the state of the art when it comes to criminal prosecutions and defense, then New Zealand is being very poorly served. And having to pay for that poor service is as galling as having the case go to court in the first place.


13 thoughts on “Theater of the Absurd.

  1. Graeme:

    1) On whose instructions? It is not like disobeying a lawful order, especially when such instructions are absurd or diversionary.

    2) Why not? All of this is already in the public domain.

  2. ” Hansen repeated that Hobbs had the greatest honesty and integrity but Hansen went further in his relationship with the current crop of All Blacks.

    “He was like the Nelson Mandela for us. Everyone just loved him.”

    It would appear to be contagious, also ironic given the Cavaliers SA tour.

  3. Pablo, presumably on the client’s instructions?

    And a lawyer who disobeys their clients’ instructions is liable for severe professional sanctions. He also creates grounds for an appeal, if not a mistrial. Even if he thinks they’re absurd and diversionary.

  4. 1. The defendants. Lawyers must act on lawful instructions.

    “Compare me to Mandela.”
    “Are you insane? The jury will hate you.”
    “This isn’t about them. I want you to compare me to Mandela.”
    “I strongly advise you against it.”
    “No, my mind is made up.”
    “Okay, but I’d like that in writing please, noting that you rejected my advice.”

    2. The conclusions aren’t. The statement “a trial in which both sides make patently absurd claims to bolster their respective cases.” is pretty close to (if not actually) giving a view about guilt or innocence.

  5. rule 13.3 of the lawyers’ ethical rules:

    “Subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s instruction on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decision to be made and the consequences of them.”

  6. Graeme and Hugh:

    I had no doubt from the beginning that if the case went to trial it would be used as a bully pulpit by the defendants, or at least by the most theatrical or self-important of them. That is one reason why I mentioned theater in the title. The only thing missing is some variant of Fidel Castro’s “History Will Absolve Me” speech.

    But what about the Crown? Who instructed the prosecutor? Are his flights of fancy as per someone’s instructions, and if so, what is the exact point being made and by who?

  7. Pablo, haven’t we already talked about the prosecutor’s incentive to over-egg the case in your previous posts about this issue?

    What it comes down to is that the prosecutor is effectively more than just somebody who is trying to get a conviction, he is also trying to deflect criticism from government policy.

  8. Hugh:

    I have my suspicions about the motivations involved on the Crown side of things (and have written about them), but was asking the question in order to see if someone will come up with a different explanation. You just did.

  9. I am certain beyond any doubt that this bluster is not coming from the defendants.

    Instead I think that the defendants overwhelmed by the process are leaving much of this to their lawyers. Lawyers love to pontificate and this provides a very high profile platform for them to perform.

  10. Re the lawful instructions thing, I assume something similar went on in Clayton Weatherston’s trial:
    “She provoked me and my reaction was totally reasonable.”
    “That defence won’t work, and will make the entire country hate you, and possibly me.”
    “No, no, the jury will understand that I was in the right.”

  11. I’m not an expert in legal ethics, but there’s a qualitative difference between “compare me to Mandela” and “defend me on the basis I was provoked.” That difference is that running a defence of provocation is a “significant decision in respect of the conduct of the litigation,” whereas “compare me to Mandela” isn’t. It’s entirely possible the lawyer is just an idiot (I would tend towards this, if only from experience), rather than acting on instructions.

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