When our reputation needs no defence

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When our reputation needs no defence

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It was a High Court court-assigned counsel case.

My client and another were charged with the murder of a man.

Although according to the prosecution’s case, the other guy shot and killed the man, my client was also charged with the same offence of murder. He was charged with having a common intention for the man to be murdered. That meant, even though he did not pull the trigger himself he can be charged with murder.

Before the trial, having considered the prosecution’s pre-trial disclosed evidence, our client’s narrative and the direction in which I calculated the prosecution’s case would take, I felt there was little evidence to demonstrate common intention on our client’s part. On the contrary, there was even an independent witness whose testimony appeared favourable to our client.

Our strategy, as I explained to him, was therefore to shut up and see what the prosecution brought against him. Given that strategy, I explained I would not be asking questions to many of the prosecution’s witnesses. But that did not mean I was not doing anything! I was carefully monitoring the situation. I told him that I intended to focus on only two of the witnesses, which I estimated would be sufficient to raise reasonable doubt about his common intention to murder.

The co-accused’s counsel was a former cop turned defence counsel. He was the sort that did not look out of place in an alley in a dodgy part of town we should not be wandering about at night. From the get-go, he was unfriendly, arrogant and indifferent to me.

The prosecution called seven witnesses. The witnesses were formal ones, forensic witnesses and those that testified about how the other guy came into possession of the homemade pistol and had it on the day in question. There was nothing in their evidence about my client having knowledge or anything to do with the pistol. I did not cross-examine any of them.

One night, while we were halfway through the prosecution’s case, my client’s wife called me, her voice trembling and punctuated by sobs.

‘Evening Puan, are you okay?’

‘Sorry to call you so late Encik Fahri. I’m so sorry to bother you so late at night.’

‘That’s alright. You sound like you are crying. Is everything okay?’

‘I just had a fight with the other guy’s family.’

‘Oh, dear! What did you fight about?’

‘Because they said you are not a good lawyer. That you are stupid and lazy. They said you have not been doing anything. That you never ask any questions. That my husband is going to lose the case. They said you are a court-assigned counsel only and usually these are lousy lawyers. They said their lawyer is a former cop and his fee cost one hundred thousand ringgit so he is better than you. They said I should use their lawyer too.’

‘Okay. So what were you fighting about?’

‘I defended you. I told them you were a good lawyer. You know what you are doing, Encik Fahri. I told them you had a strategy and you are not stupid or lazy. I didn’t tell them our strategy, of course. How can they say that about you, Encik Fahri?! It’s so wrong and unfair. I was so upset when they said all those horrible things. We got into a fight about that.’

‘I see. Well, Puan, let me first say, thank you very much for defending me before them. I appreciate it. Secondly, and more importantly, you don’t need to do that. Don’t defend me in front of them.’

‘Why? They are saying these bad things about you!’

‘Puan, it’s like this. I am appointed to defend your husband. My focus right now is defending your husband so he gets the ideal outcome. What they think of me is not important. It has nothing to do with the case.’

‘And frankly, I don’t care. Let them call me stupid, lazy or whatever. I have no problems with that. You don’t have to defend my reputation. What they think of me has nothing to do with the case. It is not my reputation that is on trial here. It is your husband’s life. Let them say what they like.’

‘But they are saying these bad things…’

‘Let them. There are only two people’s opinions I am concerned about. The first is the judge. Because the judge is the one that decides the case. Not the other guy’s lawyer, his family, or his friends. What they think about the case is irrelevant. Please don’t waste your time fighting with them over me. In fact, don’t talk to them anymore. There is no need.’

‘Okay. Are you sure?’

‘Yes. Let’s keep our efforts focused on the case. Forget about everything else outside. Just be patient.’

‘I will.’

‘Good. May I ask you something?’

‘Yes.’

‘Why didn’t your husband go with their lawyer?’

‘Actually, he wanted to. The other guy’s family was paying for the lawyer’s fees. They said he didn’t have to pay. We just follow only. But I thought, jap, if they pay the fees, that means they control the lawyer. We cannot control him. What if the lawyer does not protect my husband? What if their lawyer blamed my husband for it? His story and my husband’s story are not the same, Encik Fahri. I didn’t feel comfortable. I insisted he took a separate lawyer. We fought about it but after he met you he was alright to use another lawyer.’

My client’s wife’s instincts were sharp and completely right. My sense of it after listening to her was the co-accused’s family was happy to have my client represented by their lawyer because he would be the sacrificial lamb.

Beware of offers for help from a co-accused in a criminal trial or anyone for that matter. The stakes are high. Nobody wants to be convicted and imprisoned for a long time. Just because you are charged with the same offence as someone else, does not necessarily mean, your interests are aligned.

‘I see. That was very good advice for your husband. I am glad you insisted on it. Now, that brings me to the other person’s opinion I am concerned about, your husband. He is my client. If he does not have confidence in me to do his case, he should find another lawyer. So does your husband have confidence in me?’

‘Yes, of course, Encik Fahri. He is happy you are acting for him. He understands what you are doing.’

‘Thank you, Puan. I am glad to hear that. Then we continue with our strategy. Moving forward, avoid the other guy’s family. Let them say what they want about me. I am fine. No talking to them anymore.’

‘Yes. No talking to them anymore. Sakit hati saja.’

‘Indeed. Thank you and good night.’

The defence for both the accused was called at the end of the prosecution’s case.

A month before the trial of the defence, the co-accused’s counsel called me up. He pleaded with me to change my client’s story to match his client’s story. I politely declined. By then, his client was screwed. All the witnesses had pinned the gun to the other guy and there was still no evidence to infer common intention against my client. He called me several times after that despite being rebuffed each time. I just didn’t pick up.

At the end of the defence, my client was acquitted.

The other guy was convicted and sentenced to death. He later lost all his appeals in the appellate courts. The prosecution dropped the case against my client after we successfully defended his acquittal in the Court of Appeal.

After the pronouncement of the decision, I told my client to be grateful to his wife for advising him to get his own lawyer. The outcome might have been very different if he did not listen to her. When it came to important matters, he best defers to her.

Before I left the courtroom, I passed the other guy’s family who was in the gallery. I glanced at them on the way out. They looked sad, disappointed and frustrated. They turned to look at me as I passed.

I felt the heat of their silent stare warm my back as I walked out of the courtroom.

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