Do the best you can until you know better. Then when you know better, do better.
Maya Angelou
Kindness in the legal profession is often overlooked, but a simple manifestation of it can remind us of its importance.
It was a murder case which was case-managed for trial. Our client was an Indonesian. The victim was his fellow countryman. They were both labourers.
The court fixes case management appointments. Case management is a crucial aspect of preparing a case for trial. Its purpose is for parties to update the court about the progress of its pre-trial directions. Once that is fully complied with, trial dates are fixed.
In criminal cases, the prosecution provides ’51A docs’—evidence they plan to use against the accused. 51A refers to a provision in the Criminal Procedure Code. It is supposed to balance the scales of justice so there is ‘equality of arms’ in court between the prosecution and the defence. However, its practical application falls short.
If the accused makes a representation to the Attorney General’s Chambers, known as ‘the rep’, for the charges to be dropped or reduced, we will be in case management until that is decided. In my experience, withdrawal of a charge is rare, but a charge reduction depends on the facts.
Another reason a court may fix case management is the accused made a pre-trial application, e.g., striking out of charges, transferring the case to a higher court, requesting more pre-trial prosecution evidence, etc.
Criminal case management appointments at court are in situ (Latin for ‘on-site’; cooler than saying ‘fizikerl’, with the occasional silent ‘l’). Always. Even though case management is brief, taking no more than two minutes, we spend most of our time waiting for the accused to arrive, the court to start, or our turn to be called. Depending on your luck of the draw, that can extend to an hour. Or more. An accused has to attend case management even though they have no role to play except to witness the process.
My colleague, Iqbal, was working on that murder case with me. He attended to the case management. As is our practice at the firm, we have a pupil tag along to get a ‘feel for the criminal’, so to speak. On one occasion, he brought along our pupil, Natasha. That would prove to be a paradigm-shifting moment for me.
Iqbal met me the day after the case management to update me on the case. After giving me an update on the case, he told me that he saw Natasha pass our client a KitKat bar during the wait. He said the gesture blew him away. It reminded him that the accused person, though charged with a horrific crime, was still human and deserving of kindness and charity. It made him aware of how easy it was to be indifferent to the human dimension in criminal legal practice.
If he felt that, I felt it harder.
When he told me about Natasha’s gesture and his reaction to it, the hair on my arms stood on end. As much as I resonated strongly, having that awareness made me feel guilty about my indifference to my many previous criminal clients.
My charity for legally aided criminal clients, except that time with Hasan Ali, only went so far as respectful but firm engagement, being honest with them, being willing to pass messages to their family or friends, having conversations if they were interesting, and doing my best by them for their case. I never bought any food or drink for them before.
I saw now, despite my best efforts, how I could do better.
I caught up with Natasha later in the day and asked what informed her gesture to our client.
‘I thought it would be something different for them. I know it’s nothing much. But their life and food must be bland and routine, so this is a bit of relief from that. And it is like a taste of the outside world for them. Their life is sad as it is. We could all do with a bit of kindness. And you know what?’
‘What?’
‘After I gave it to our client, he unwrapped it, broke it into four pieces and passed three to those next to him. I almost cried then and there. This guy is charged with murder, and he is sharing his chocolate.’
People are funny like that.
I had an opportunity to put my better self into action soon after. The next week, I had my first case management for a new drug trafficking case in Shah Alam. I attended those to ensure another lawyer wasn’t hired, and the client confirmed my court appointment. Inspired by Natasha, I resolved to bring a treat for my client. I hear ya, Maya!
I got to court early and bought a sandwich pack and two coffees at the coffee chain outlet in the basement of one of the court complex wings. I found my client in court, sitting chained and handcuffed with four other men. He was a bespectacled Chinese man with a receding hairline and a slight stoop. He looked like someone who worked behind the counter of a sensei shop, not a drug trafficker. I discovered he hadn’t eaten after introducing myself and acquainting with him.
I was delighted to give him the sandwich and coffee I had bought in anticipation of that answer. Because he was chained with others, I made it a point to deliberately say aloud for the benefit of others that I bought it for him. While waiting, from time to time, I glanced over at him to see whether he drank or ate. He didn’t. The poor guy looked like he still could not believe he was there.
My glee at doing better was soon severely tested.
It involved another murder charge against a Myanmar national that was fixed for trial not long after that appointment. He was accused of murdering his distant relative. Although I entertained the thought of bringing a treat for him, I decided against it because of his flip-flopping before trial.
At our first meeting, he was willing to plead guilty to a culpable homicide and take a 30-year sentence. Iqbal, who was also on that case with me, and I were delighted with his instructions because his case had poor facts. That is being charitable.
According to him, when the incident happened, he was blind drunk and hazily recalled being in an aggressive argument with his relative about borrowing a paltry sum of money. He could not recall stabbing her, but he did remember going into the kitchen amidst the shouting match. Even though there were no witnesses to the killing, there was enough evidence to prove he was the last person seen with the victim. Other facts were also decisively unfavourable to him.
After writing a rep and receiving an offer to reduce the charge to culpable homicide, we were pleased. I felt the rep fit the offence charged. It lined up with how we saw the case.
From our assessment, that was the best we could do with the facts. We could cast doubt on the required mens rea (the criminal intent), but we could do little about the actus reus (the criminal act). Not all cases can be won. Often, they are impossible. But when the facts permit, we can get a charge reduction. That’s still better than an outright loss.
For myself, a charge reduction is a partial win.
However, when we went to see our client with the good news and our prepared letter of instruction to confirm the plea of guilt to the reduced charge, he baulked. He changed his tune. He claimed he didn’t instruct us for that and insisted he wanted to fight the case.
After spending an almost fruitless hour in prison attempting to persuade him to reconsider his earlier decision, I returned to the atelier frustrated and annoyed with him. A trial would not improve our chances. Instead, it was likely to worsen them, particularly given how inarticulate and simple our client was. Inebriation and I-don’t-know are insufficient defences to a charge of murder.
If he accepted the rep’s offer, we could avoid a trial and be able to push for a lower sentence than if he claimed trial. A trial felt like a waste of time because the best we could get from it was a culpable homicide.
But what to do? If that is how the client decides, it is not for us, as lawyers, to impose, insist or commit undue duress to force a decision. I know some lawyers do that. I don’t. I may be annoyed, frustrated and disagree with their choice, but if that’s how they decide, I will do my best by it. Ultimately, it is their life; the consequences are theirs to bear, not mine. It is right that they should decide on their fate.
So, you best take counsel before deciding and be discerning about the counsel you rely on. The ones that sing you what you want to hear at the start usually sing a different tune in the middle and at the end. Those who tell you things you don’t like to hear are likelier to speak truer. The ones that don’t sugarcoat are the ones that keep it real. Beware of guarantees.
Because I was annoyed with him, I did not bring a treat for my Myanmar client for the trial.
After he arrived in court for trial, with the Myanmar interpreter in tow, we spoke to him about the rep offer, which we explained was still valid. The prosecution appeared to have a strong case because they brought his housemates. They would testify about him being the last seen person with the victim. If he fought and lost the case, it would be a heavier sentence than if he pleaded guilty to the reduced charge.
He relented and agreed. We told him the minimum was ten years and the maximum was thirty. The minimum and maximum were unlikely. We didn’t know what that middle would be. I told him I hoped it was in the teens and would not hit the twenties.
After hearing his mitigation submission, the court declared his sentence fourteen years imprisonment. That was decent since he had already served four years. He had about five more years to go with remission for good behaviour. He was thankful and seemed a little surprised at the sentence. I think he expected something heavier.
After that, I saw how I could have done better for my Myanmar client, sympathy and empathy-wise. I could have been kinder and more understanding. He had a difficult, challenging life with few breaks. These people have their own trauma and psyche issues they are contending with. I should not let my annoyance at him inhibit or restrain my capacity for kindness. I should have been the bigger person. It should not matter if he annoyed the hell out of me.
I should have contributed to those random acts of kindness, generosity, and genuineness that bless the fortunate. After all, a treat doesn’t cost much.
Knowing does not necessarily lead to doing or doing well.
In the end, knowing better is only the first step. Doing better requires conscious effort and a commitment to kindness, especially in challenging circumstances.
1 thought on “Do the Best You Can Until You Know Better”
Reading this reminds me of my often predicaments dealing with those who arent as thriving life like us.
There are 1000 things in my mind at the moment as I was going thru the occasional drama, from money borrowing, advances, choices made that landed them in the rut despite I told-you-so reminders, going AWOL making the world worried and the list goes.
As im typing this, im much in my own cave, shying away from all that is despite knowing well enough how tough life has been for them…
I’m actually tired from being kind, tired being used, tired that despite all the lending hand, people of such will just come back acting all entitled. Some even returned to bite.
So while I was reading what you wrote, which i was able to totally get you, i wondered if really my days of kindness is really over? Should I just be not bothered anymore and know that there will be someone who will feel deep enough and get involved some how. Or should I just take a breather n until im done resting, get back to being kind…
Oh well, time Can only tell and we will just do what it takes to stay and be happy…