Coroner on Greg King

October 18th, 2013 at 7:00 am by David Farrar

Stuff reports:

Top lawyer took his life, depressed, burnt-out, and haunted by the dead from the cases he had known.

Coroner Garry Evans has released his findings into the death of King, 43, whose body was found on November 3, last year, in Dungarvan Rd, Newlands, Wellington, not far from his Mercedes car.

In the car was a typewritten note that began:

“To everyone: How can I explain the unexplainable?”

It said that after nearly 20 years as a defence lawyer he was burnt out, disillusioned and depressed.

“He says he is haunted by the dead from his numerous homicide cases and hates himself for what he has done,” Evans said.

“He says he has been genuinely torn between doing his job and his conscience, which keeps asking him ‘Is this really what you want to be doing?’”

I don’t think I could be a criminal defence attorney. I admire those who can, because it is vital defendants get fair trials and are only found guilty if there is no reasonable doubt. But I would personally struggle with defending those accused of certain vile crimes. I think I would struggle to cope, as Greg King obviously did. It is a mark of his humanity that just performing his role caused him such anguish (not to suggest those without such anguish are  inhumane).

In his finding, Evans mostly paraphrases the note in which King spoke of the experiences with criminals that had dulled his human senses and the victims of serious crime who affected him profoundly.

What a sad loss.

Milnes-King had told the coroner her husband had a massive breakdown in June, 2012, the night after delivering his closing address for Ewen Macdonald in the Scott Guy murder trial.

The trial had taken a substantial toll on him and his breakdown was the most intense she had seen, going on for hours whereas he would usually be able to pick himself up.

In a sense he is a further victim of that tragedy,

In the week before King’s death, The ’s investigative reporter had approached King about an allegation from a disgruntled former client of irregularities in legal aid billing.

The Ministry of Justice, which administers legal aid, had found King’s legal aid bill for the client’s case had been “well within” the range of what was reasonable and to be expected but in King’s absence the investigation could not be taken further.

A senior police officer who investigated King’s death thought that, in King’s frame of mind at the time, the thought of a media circus over legal aid could have felt overwhelming, but Milnes-King thought her husband was unlikely to have been unduly worried by the allegations made against him.

I think it was probably a factor, but not a determinative factor. The Herald reports:

The police officer who investigated Mr King’s death, Detective Inspector Paul Basham, said he had investigated matters involving Dominion Post investigative reporter Phil Kitchin, who was looking into allegations made against Mr King by a former client.

The disgruntled client had alleged irregularities in legal aid billing.

But he said Ms Milnes-King believed her husband was unlikely to have been unduly bothered by the allegations, and there was no mention in the suicide note.

Kitchin gave evidence he had contacted Mr King on November 1, two days before Mr King was found dead, but described their conversation as “cordial, courteous, professional and polite”.

He told Mr King it was possible he would not publish a story.

What would be interesting to know is whether or not a story was written and was in the system, so to speak. But I think it is far to conclude that the inquiries by the Dominion Post were not a major factor, and were not improper. Of course it is all speculation, as we don’t know exactly what led to the sad decision, but the lack of any mention in the suicide note is influential.

Ms Milnes-King said her husband had helped a lot of individuals and organisations on a pro bono basis, and had a charitable spirit which saw him engaged with numerous groups.

“He represented clients for free and made many unpaid trips to the West Coast acting for the Pike River contractors who were left out of pocket after the tragedy.

“This is an extremely difficult time for our family. With the first anniversary of Greg’s death in a few weeks, we trust people fully understand and respect our need for private time.”

Sensible Sentencing Trust’s said New Zealand had lost one of the greatest men he had the good fortune to meet.

“Greg gave his time willingly and freely to assist many of the families and victims within the wider Sensible Sentencing Trust family,” Mr McVicar said.

“Greg’s knowledge of the law, his passion for people from all walks of life and his drive to leave society better than he found it was unique and irreplaceable.’

Such a glowing tribute to a defence lawyer from the Sensible Sentencing Trust shows how special Greg King was.  The only good to come out of this will be more people confronting their depression and mental health issues at an early stage to avoid further situations like this.

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45 Responses to “Coroner on Greg King”

  1. Cato (1,095 comments) says:

    The loss if any human life to a suicide is a tragedy always. RIP.

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  2. nickb (3,673 comments) says:

    Very sad. A great New Zealander. RIP

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  3. Dennis Horne (2,120 comments) says:

    I do not feel sorry for people who are dead. It is the dreadful pain and despair that distorts their view of the world to the extent they feel death is the only possible answer that I feel sorry about.

    It is perfectly clear to me that while defence lawyers cannot lie to the courts, they can lie to themselves. This may be somewhere between talking to oneself, “Nah nah na na nah,” and saying, “It’s my job not have personal views so I don’t have any.”

    Evidently Greg King was unable to do that. I can see why everyone thought he was a decent chap. Shouldn’t have been a lawyer in our adversarial system, which rewards unspoken lies, distorted views and false arguments.

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  4. Cato (1,095 comments) says:

    Irony alert.

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  5. Scott Chris (5,947 comments) says:

    Sad. It’s hard to imagine what would cause a man to commit such a selfish act but it would seem that King had more than his fair share of demons.

    But he’s dead and feels nothing now. Those he left behind are left with his burden.

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  6. Dennis Horne (2,120 comments) says:

    @Scott Chris. To kill yourself takes more courage than a person in a normal state of mind could muster. I don’t think it’s fair to judge.

    I’m talking about in this context, before C**t Cato has another go at me.

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  7. Reid (16,070 comments) says:

    One wonders if a variation of the trauma counselling regime available to the Police shouldn’t also be available to criminal lawyers. There are well established logical rationales for defending the accused but they are all based on the intellect and that doesn’t help when emotion conflicts with the intellect, the emotions will always win, unless they can be surfaced and worked through. Having a standard process in place would help with that, even though many lawyers would sniff at the idea, but at least they’d know they weren’t alone.

    Possibly one potential solution is to find some way to break down the barriers that exist (for good reason) between counsel for the accused and their grieving victims, so that at least there were avenues available, if the parties so wished, for the counsel and the victims to come together, probably not before or during the trial but afterward. Education for the victims on the role of defence counsel in the system might help their forgiveness process for forgiving the counsel is the only way to assuage the counsel’s guilt. Of course there are plenty of barriers, like what if there are appeals to be heard, etc; but humans are ingenious at finding a way, when they determine to do so, and frankly, allowing this situation to continue because Greg will not be the only defense counsel who feels this way, simply generates yet another tragedy, whether by destroying a person’s peace of mind or leading to this ultimate sacrifice.

    Blessings Greg, and to your family.

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  8. Scott Chris (5,947 comments) says:

    To kill yourself takes more courage than a person in a normal state of mind could muster.

    Not sure that it does Dennis. It would take courage to kill yourself perhaps if you were in a normal state of mind (but then why would you?) but ultimately those who wish to kill themselves but refrain from doing so show more courage imo.

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  9. nasska (10,834 comments) says:

    Criminal law was originally created to provide justice yet the system has evolved to a point where law is worshipped with justice relegated to a distant second.

    For a person such as Greg King, who basically was a decent man, the situation would be schizophrenic.

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  10. Dennis Horne (2,120 comments) says:

    @Scott Chris. I’ll go further than what I said earlier. The Jihadists brainwash their suicide bombers. The army brainwashes men to kill or be killed. The easiest to brainwash are the young men. Normal state of mind? No.

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  11. Dennis Horne (2,120 comments) says:

    Cato suffers from psychological splitting. Everything is either A or B, good or bad, no continuum, no judgement. There is the world of difference between a younger man with a family making a net contribution to the world killing himself through despair, and a highly dependent old person, whose days are numbered, choosing to shorten the wait for inevitable death, maybe in excruciating pain.

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  12. Kea (11,878 comments) says:

    nasska, justice is subjective and law attempts to be objective. You go to court for justice and what you get is law. Sometimes those two things come together. Sometimes not.

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  13. Chi Hsu (94 comments) says:

    As a lawyer myself I can relate to the feeling of making decisions that can have a significant impact on people. Although they are the ones who suffer for it, there is also the weight of responsibility that can be crushing. The most important thing now is for there to be clear and available support procedures in place for the families who have lost loved ones to suicide.

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  14. Dennis Horne (2,120 comments) says:

    @Chi Hsu. We’re not talking about the weight of professional responsibility, many people have far greater weight to carry than lawyers. We’re talking about knowing what you’re doing is morally wrong but still doing it – like getting a murderer off by bamboozling witnesses and jurors. Not to mention the privy council.

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  15. fernglas (115 comments) says:

    I had the pleasure of meeting Greg several times professionally, and I found him a charming, intelligent and compassionate man, none of which are prerequisites for a long career at the hard edge of the criminal law, which is where he practised. The strain on criminal lawyers, both defence and prosecution, can be enormous. There are those who have thick hides and seem immune to the stresses but they often lack the basic humanity which would make them a good criminal lawyer. Those who empathise with the accused and victims compensate by developing a veneer which can appear to be callous, but which is a simple defence mechanism. Much the same applies to the other main actors in the system, Police and the judiciary. There is much to be said for dividing the forensic side of crime from client maintenance and management. This at least prevents the lawyers involved from becoming too close to the case, and as such is not only a help to the mental wellbeing of lawyers, but a way of maintaining their integrity, particularly in a system where advocates either defend or prosecute and rarely do otherwise. Greg contributed enormously to the system within which he chose to work, but at a personal expense which was too great. He is greatly missed

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  16. Nigel Kearney (904 comments) says:

    “He says he is haunted by the dead from his numerous homicide cases and hates himself for what he has done,”

    They were dead before he got involved. Like most suicides, he just wasn’t thinking clearly at the time. Greg King did a great job and contributed to the justice system working as it should. He should have been proud of his achievements. Some guilty people going free where there was insufficient evidence to convict them doesn’t change anything.

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  17. Dennis Horne (2,120 comments) says:

    @Nigel Kearney. Some guilty people going free where there was insufficient evidence to convict them…

    Some people go free because the case is poorly prosecuted, some because defence lawyers are clever schemers, some because the witnesses are bamboozled, some because the jury is dopey, prejudiced or got at even…

    A good defence lawyer gets you off, whatever. That’s what you pay the big bucks for.

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  18. slightlyrighty (2,499 comments) says:

    I watched Peter Williams, QC, on Breakfast this morning about this matter. He remarked on the fact that he represented Mr Asia, got him acquitted, and Mr Asia went on to commit far more heinous acts. Williams almost seemed proud of the fact, and I remarked to my wife that this man’s moral compass was way out of whack.

    I don’t think Greg King had that problem, which, ironically, was his problem. If you want to see a defence lawyer with a good balance, Judith Ablett-Kerr is one to watch. Her defence of Clayton Weatherston had been pilloried by those who don’t know about the law. Many people attacked her, but the defence was robust, accurate and reflected the state of mind of Weatherston, and probably aided in his conviction, while protecting his right to a fair trial. It is probably one of the safest convictions in recent times of such a high profile case.

    A good defence lawyer shouldn’t “get you off” as much as protect your rights within the justice system. I think that King tried to be a guardian of defendants rights, but operated in an industry that demanded a level of duplicity he was uncomfortable with, and that he could not separate himself from.

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  19. Chuck Bird (4,737 comments) says:

    I think in many cases civil lawyers are worse. The lawyer who is representing the former lawyer who has made a totally false counter claim “knows” it cannot really be true. He knows if he can use clever legal tricks to decisive the court he will be assisting in stealing money off me. He would have to be thick as two short planks to not know his client is lying.

    The same applies to lawyers involved in inheritances. Many would be 99% sure their client is lying but asset their client in ripping off their relations. There are lawyers that will go around and witness a will from a dying person of unsound mind – just following client’s instructions.

    What really concerns me is some of these scumbag lawyers end up as judges. If more judges and MPs had a conscience we would probably see a few suicides from them. Sociopath often threaten suicide but rarely carry it out.

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  20. Dennis Horne (2,120 comments) says:

    A good defence lawyer shouldn’t “get you off” as much as protect your rights within the justice system.

    No, a good defence lawyer gets you off, just as a good soldier kills a husband and father when paid to.

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  21. Pauleastbay (5,035 comments) says:

    No, a good defence lawyer gets you off, just as a good soldier kills a husband and father when paid to.

    Dennis

    hand off it, you are talking absolute rubbish.

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  22. nickb (3,673 comments) says:

    Lucky we have the sage advice of Dennis Horne QC to explain his first-hand view of being a criminal defence lawyer.

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  23. Dennis Horne (2,120 comments) says:

    If I ever appear before a judge, I hope it is Justice Patricia Courtney. Her patience and humanity made me feel proud to be a Kiwi yesterday. I watched Peter Williams QC under cross-examination and drew some conclusions about his character he “wouldn’t want to hear” – to use his own words spoken about and to the defendant who was acting for himself. Disgraceful uncalled-for snide comment.

    I watched Michael Reed QC in action. He might make an insightful judge – he certainly knows the tricks of the trade …

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  24. Dennis Horne (2,120 comments) says:

    @nickb. I am talking as a potential consumer, which I am entitled to do. I am taking broad view from the outside. Only those on the inside can enjoy their biased opinion.

    I don’t want to brag, but I’m not a lawyer.

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  25. Pauleastbay (5,035 comments) says:

    Dennis

    Peter Williams is a liberal, its not aganst the law, I don’t agree with most of his views but he isn’t a dummy.

    There are no tricks of the trade -preperation, preperation and then some preperation coupled with the abilty to articulate that preperation. I’m sure Mr Reed will appreciate his working lifes experience summed up as ” a trick of the trade”.

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  26. David Garrett (6,661 comments) says:

    I wrote the below yesterday, before this thread was created:

    “Lost in all the feeding frenzy about Len and the Mistress…incredibly sad finding in the Wellington Coroner’s Court that Greg King did indeed take his own life while suffering on a number of fronts.

    I did not know Greg well, although he acted for me in my fight with the Law Society – pro bono as I had no income at the time and couldnt pay. I also had a bit to do with him at Sensible Sentencing, in which he had become increasingly active.

    As his suicide note makes clear, he had become increasingly disillusioned with the practice of criminal law to which he had devoted his professional life…I know that through the SST he had met the victims of some of the scumbags he had successfully defended…I knew he found that difficult and even distressing, but none of us – apparently even his wife – knew just how much it had got to him.

    A great loss to his family, to the legal profession, and New Zealand. RIP Greg.”

    I post it again as a tribute to Greg, as Garth McV has said, a fine man.

    But there are also some thoughtful comments here this morning, particularly about the criminal law and the practise thereof.

    At Law School – as the lawyers commenting here all know – you are expected to “buy a package” the essential elements of which are: 1) the defendant’s guilt is none of your concern; 2) everyone deserves the best defence possible; 3) you are not to judge, that is someone else’s job – usually a jury 4) While always complying with the rules of ethics, you must do everything you can to get the defendant acquitted, and if he is found guilty, to mitigate his sentence as much as possible.

    That “package” makes complete sense to most 18 or 19 year old law students – usually from fairly privileged backgrounds – who have had very little exposure to, and understanding of, the real world. I personally found it impossible to “buy the package” for a number of reasons, among them that in my working life hitherto I had known some thoroughly evil bastards, and I did not want to use whatever skills I might develop defending them, and possibly getting them off which, as Dennis H has pointed out, IS the defence lawyer’s job (sorry PEB, but you are wrong on this), so long as the rules of ethics are complied with, the most importone one being not knowingly misleading the court.

    I heard Greg say once – to an audience of SST victims – “I got into the criminal law to defend the people who had been wrongly accused. The trouble was I found there weren’t enough of them around to make a living”

    What a terrible shame he had bought the package all those years ago..he could instead have made a zillion working in corporate law…or even perhaps become a poli…

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  27. Pauleastbay (5,035 comments) says:

    DG

    The defences job is to present the case to the best of his ability for his client, if this results in an acquittal ,so be it. The defence or prosecution have no control over who is found guilty or not guilty. All they can do is do their job as well as they possibly can. As you say in your package description above.

    There are some brilliant defence lawyers out there who very rarely “win” but their ability ensures their client is only punished a small percentage of what is available to him.

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  28. Pauleastbay (5,035 comments) says:

    DG

    Without turning this into a suicide thread. The personality of the individual out weighs the profession of that individual. My take would be if the individual was a bus driver or a mechanic the personality will overule with pressures real and imagined – the tragic result ensues.

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  29. Dennis Horne (2,120 comments) says:

    The ideal and the reality, eh. MacDonald chose King, for example, to get him off, guilty or innocent. Was he interested in the legal niceties, cucumber sandwiches …

    The duty might be to the court but the defendants are paying, and I would expect a lawyer to get far more clients if he is viewed as successful at getting people off.

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  30. slightlyrighty (2,499 comments) says:

    Dennis.

    There is a difference between an effective defence lawyer and a good defence lawyer. A good defence lawyer can be very effective, but an effective defence lawyer does not have to be good. In fact, sometimes to be an effective defence lawyer, you have to be a prick.

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  31. F E Smith (3,305 comments) says:

    @ Dennis Horne,

    It is perfectly clear to me that while defence lawyers cannot lie to the courts, they can lie to themselves.

    That statement, along with much else that you have said on this thread this morning, is utter bollocks.

    David G,

    sorry, I am going to agree with you on this one.  I think slightlyrighty and PEB have it right. I do my job to ensure the system is conducted fairly and properly.   It is not my job to get my client off their charges, but to see that they are only convicted if the evidence is sufficient for them to be proved guilty beyond reasonable doubt.  I am happy to test the evidence to do my best to ensure that is the case.

    Unlike Greg, I got into criminal law by accident, but I have always found it to be a rewarding occupation.  However, being a common lawyer is much more stressful than most other types of law.

    Greg was one of the best we have had.  We all miss him.

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  32. F E Smith (3,305 comments) says:

    The defence or prosecution have no control over who is found guilty or not guilty. All they can do is do their job as well as they possibly can. As you say in your package description above.

    This.  Both prosecution and defence can only work with the evidence that they are presented with.  Contrary to popular belief, defence lawyers do not make up evidence to suit their client.

    EDIT: Oops, I meant in my comment above that I was NOT going to agree with DG!

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  33. Longknives (4,627 comments) says:

    ” Contrary to popular belief, defence lawyers do not make up evidence to suit their client.”

    What a steaming pile of shite! I’ve spent enough time in Court to know that many Defence lawyers will try absolutely fucking anything to acquit their client (or abort the trial)
    It’s ‘just business’ you know??

    I have a couple of good friends who are Defence lawyers, both top blokes…and by all accounts Greg King was a nice fella. But elevating them to Sainthood is totally unrealistic, it’s a dirty game..

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  34. David Garrett (6,661 comments) says:

    Longknives: No-one is elevating Greg to sainthood…He was just a great guy who unfortunately – and too late – found that the package he had bought at Law School had some very nasty fishooks in it.

    FES: At the risk of you guffawing at my naivete, Let me ask you this…You have a client with several drink driving convictions [yes, I have one of those, and I am not proud of it]…While well over the limit, your client kills a child (we might as well make the scenario emotive). During preparation of his defence you find some overzealous cop has forgotten (let’s be charitable) to allow said drunk driver to consult his lawyer “in private and without delay”, a clear breach of BORA. The Judge acquits him on that basis, although there is no doubt: 1) the guy was well pissed; and 2) the child is dead, and he killed her.

    When looking at yourself in the mirror next morning would you feel quite untroubled by your success the previous day?

    I ask you this (and any other of the brethren who may be here) because that is the question I asked myself 25 years ago when I did criminal law. My answer was “no f…ing way could I do that”. If it had been Greg’s answer, I have little doubt he would still be with us…

    Dennis H: for what it’s worth, Greg was convinced McDonald was innocent…not just “rightly acquitted” which is quite different, but that he didnt do it.

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  35. F E Smith (3,305 comments) says:

    You have a client with several drink driving convictions [yes, I have one of those, and I am not proud of it]…While well over the limit, your client kills a child (we might as well make the scenario emotive). During preparation of his defence you find some overzealous cop has forgotten (let’s be charitable) to allow said drunk driver to consult his lawyer “in private and without delay”, a clear breach of BORA. The Judge acquits him on that basis, although there is no doubt: 1) the guy was well pissed; and 2) the child is dead, and he killed her.
    When looking at yourself in the mirror next morning would you feel quite untroubled by your success the previous day?

    Yes, I would have no problem with that.  I would be pretty upset that the Police didn’t follow a simple procedure, though, and therefore through carelessness or negligence allowed a killer driver to walk free.  If the person is truly guilty and the Police do their job properly then it is usually very difficult to get an acquittal, which is as it should be.  I see my job as being as much to hold the Police/Crown/Courts to account as it is to assist the client.

    I would also do my best, if the client needed it, to get the client help for any drinking problem that they might have. 

    I have to say, just as an aside, that in a situation like you describe, many drivers would choose to plead guilty even after being told that they have a defence.  If they chose not to, however, I have no issue in defending them.

    Please note, everybody, that I would not be defending the action.  That is not my job.  We defend people, not crimes, and there is a real difference in that distinction.

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  36. Chi Hsu (94 comments) says:

    F E Smith (2,883) Says:
    October 18th, 2013 at 2:11 pm

    Yes, I would have no problem with that. I would be pretty upset that the Police didn’t follow a simple procedure, though, and therefore through carelessness or negligence allowed a killer driver to walk free. If the person is truly guilty and the Police do their job properly then it is usually very difficult to get an acquittal, which is as it should be. I see my job as being as much to hold the Police/Crown/Courts to account as it is to assist the client.

    You have no problem because you have played your role and met your obligation to the system. But how do you feel as you turn to walk out the courtroom and see the grieving parents?

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  37. David Garrett (6,661 comments) says:

    FES: And there is the difference between you and me…I make no criticism of you – someone has to give said pisshead killer the best available defence….it just wouldn’t ever be me.

    Chi Hsu: Exactly. Which is why I always did civil stuff….money is not the same as lives. I have successfully defended ratbag employers too, but again, that’s not quite the same.

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  38. F E Smith (3,305 comments) says:

    You have no problem because you have played your role and met your obligation to the system. But how do you feel as you turn to walk out the courtroom and see the grieving parents?

    A fair question.  Any crime that has an actual tangible victim or victims is saddening.  But it happened well before I got involved and although I might represent the perpetrator/s, I am not responsible for it.   If the defendant has been acquitted on a technical point of law then I did not create the situation where that point was effective, I merely pointed out the fact that it existed and presented my client’s argument as to what the outcome should be.

    That all said, I am human (although sometimes my wife does wonder!) and there have been times when I have been disgusted, disappointed, or appalled by my client’s actions (and have from time to time told them so). 

    So in the situation that you posit, Chi Hsu, I would do my job but that does not mean that I would not empathise with the grieving parents.  Such a situation is not one where I would take any satisfaction in the outcome, but it would not make me change my advice to my client.

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  39. Nostalgia-NZ (4,994 comments) says:

    I’m surprised there is no mention by the Coroner of the cancer Greg was suffering and which had reportedly worsened or returned. I can’t help but feel that would have been a significant weight upon him. He could have walked away from being a defence attorney but not walked away from cancer.

    He obviously wrote that the letter at a very bad time. It has always been hard to imagine that Greg King did not love the practice of Law.

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  40. Tinshed (105 comments) says:

    Some people have down-voted some very sensible, heartfelt comments about Greg King. For example, those that clicked on the “thumbs down” icon for nickb‘s and David Garrett‘s posts. Shame on those who did this. You have no humanity and are bereft of human decency. You should be lucky to have 1% of the intelligence, compassion and conscience of Greg King. He was a good man, a very good man. He may have acted for those that had none of his character and decency, but please, do not diminish him by the all too easy click of a red, thumbs-down icon.

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  41. Dean Papa (775 comments) says:

    Poor bloke. I made a harsh comment in kiwiblog about his grandstanding during the Macdonald trial. The reality is that in the vast majority of cases the accused is guilty, and is a vile ratbag sociopath. Defending them, even associating with them and having to pretend you are the accused friends would be to defile oneself. It might be okay if you are a narcissist like Williams or Reed, but if you are a sensitive caring bloke then it could destroy you. That’s why it is better to be a prosecutor. You can conduct that case with dignity and less of the over the top theatrics. There is a romanticism associated with being on the defense team in a trial, because of telly and the movies, but this does not coincide with the reality.

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  42. CharlieBrown (916 comments) says:

    F E Smith – Your ethics sounds very close to the “just doing my job” or “just following orders” excuse that numerous nazi’s had when the war was over. If enough lawyers took a decent ethical stand then the powers that be would have no choice but to change the system we have now.

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  43. F E Smith (3,305 comments) says:

    CharlieBrown,

    are you suggesting that lawyers should refuse to represent accused persons? Are you really equating that representation with the commission of Nazi war crimes?

    Might I remind you that generally the person on the other side of a trial is also a lawyer, are you suggesting that their actions are acceptable because they are representing the State in prosecuting a person, but I am contemptible because I am representing a person accused of a crime?

    Dean Papa,

    The reality is that in the vast majority of cases the accused is guilty, and is a vile ratbag sociopath.

    The first part of that is correct, the second is most definitely wrong.

    That’s why it is better to be a prosecutor. You can conduct that case with dignity and less of the over the top theatrics.

    That suggests that you haven’t spent a lot of time observing jury trials.  Prosecutors can easily go OTT.

    There is a romanticism associated with being on the defense team in a trial, because of telly and the movies, but this does not coincide with the reality.

    There is nothing romantic about being a defence lawyer, but it is a necessary and vital role that allows us at least some measure of confidence that there is someone standing between the overwhelming power of the State and the ordinary citizen.  

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  44. Snarkle (118 comments) says:

    Agreed, FE Smith. Defence lawyers are essential. The death of Greg King was a tragedy.
    Perhaps what is bothering people is not so much the role he had, but the way some of the Scott Guy defence was played. To remove some of the emotion of that case, and perhaps point out where the discomfort may lie, can I propose a hypothetical defence scenario and ask one question?
    Scenario: a man is accused of a very serious crime. He has pleaded guilty to a string of less serious crimes committed against the same victim. The defence lawyer wishes to persuade the jury that the admitted lesser crimes do not in themselves mean his client is guilty of the serious charge. No problem so far.
    However, the judge has suppressed other crimes the accused has pleaded guilty to. These other crimes, which of course the defence lawyer knows about, cast serious doubt on the accused ability to feel any sort of remorse for anyone or any other creature.
    The defence lawyer then makes a speech in which he admits his client is guilty of the lesser crimes but- and this is a key part of his defence speech- “My client is suffering eternal regret that he did these things”.
    And now the question:
    Is the defence lawyer misleading the jury de facto, if not de jure?
    Thanks in advance for thinking and commenting on this.

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  45. F E Smith (3,305 comments) says:

    Snarkle,

    The answer is neither, because what you have posited cannot, or at least should not, occur.

    You said that 

     The defence lawyer wishes to persuade the jury that the admitted lesser crimes do not in themselves mean his client is guilty of the serious charge

    which is fair enough, but then you go on to say that

    the judge has suppressed other crimes the accused has pleaded guilty to.

    which would mean that there was no need to refer to those charges or to persuade the jury that they have any bearing on his client’s guilt.

    Indeed, the defence lawyer should not make such an admission when proof of the existence of other charges has been ruled inadmissible, because to do so would then allow the Crown to bring in the evidence that had previously been ruled inadmissible.  That would be seen as quite some error by the defence lawyer.

    I am not sufficiently familiar with the Scott Guy case to remember what Greg said in his closing address, but I don’t think that he made any admissions re the other charges that Macdonald faced. I am happy to be corrected on that point.

    But, in a hypothetical such as you posit, the defence lawyer would not be making such a statement as you use.  Certainly, if he/she did so then saying that their client suffered eternal regret would be completely pointless because they would have much bigger issues facing them. Such as having to give evidence in the appeal as to why they made such an admission and why it should not lead to a finding of incompetence!

    But even if things did happen as you posit, then lawyer would not be misleading the jury at all because he/she should not say that the client was suffering eternal regret unless the client had actually instructed the lawyer that they were indeed suffering eternal regret.  If there was no such instruction then the lawyer would not ethically be able to make such a statement (and doing so could backfire on them and their client). If the client did make sucn an expression, the it is not for the lawyer to judge (and no, we don’t parrot everything they say, we use our judgment on many things.  If they tell us that they don’t feel any remorse and then instruct us to tell the judge that they are in fact remorseful then we won’t be saying any such thing!).

    Your point about the other charges that

    cast serious doubt on the accused ability to feel any sort of remorse for anyone or any other creature.

    is not really valid because we lawyers are not psychiatrists and are not in a position to be making such a judgment about our client.  If there is psychiatric evidence of such a condition then that is different, but just because they have pleaded guilty to various charges that reflect badly on them is not sufficient to allow us to come to a conclusion that they are unable to feel remorse and therefore discredit any expression of remorse that they may make to us.  We must proffer that expression in its proper place (usually sentencing) as instructed.  If they judge disbelieves that expression of remorse (and that is their right) then that is not our problem.

    As I have often said, criminal lawyers are not presenting their own opinions in court.  That is not an acceptable action for a lawyer, prosecution or defence, to take.

    Hope this is all understandable! It is a bit late…

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