:: Article

All in the Game

By Max Dunbar.


Defending the Guilty: Truth and Lies in the Criminal Courtroom, Alex McBride, Penguin 2010

How do you do it? How do you commit your energy and effort to keeping dangerous criminals on the street? How can you chip away at the sentences of killers, robbers and rapists? How can you employ your harshest rhetoric against witnesses for whom giving evidence will be one of the most traumatic experiences of their lives? How can you traduce victims? How does it make you feel? How do you look in the mirror in the morning and get to sleep at night?

Consider. There is a name offender who runs his area as a personal slave state. His details come up time and again, but everyone is too afraid to speak out. A team of police officers spend months and even years collecting the evidence and coaxing witnesses to come forward. Finally the man is arrested and there’s more sweat and hours getting the CPS to prosecute. The day in court comes. A defence barrister manages to get the offender acquitted on a technicality. He walks out of court laughing, gives the arresting officer the finger and strolls off to continue his life of predation and evil.

Small wonder that in Broken Britain’s hate parade the defence barrister is up there with immigrants and benefit claimants. They are folk demons of rightwing agitprop, scheming metropolitan liberals who make their millions from defending the human rights of killers and terrorists. One of The Wire‘s high comic moments has the flamboyant stick-up artist Omar Little testifying against a hitman from the notorious Barksdale crew. The hitman is represented by Maury Levy, the unofficial Barksdale consigliere, who tries to invalidate Omar’s testimony by bringing up his record: ‘You are feeding off the violence and the despair of the drug trade. You are stealing from those who themselves are stealing the lifeblood from our city. You are a parasite who leeches off the culture of drugs’.

Wearing a ridiculous floral tie as a sole concession to courtroom environment, Omar responds:

Omar: Just like you, man.
Levy: Excuse me? What?
Omar: I got the shotgun. You got the briefcase. It’s all in the game though, right?

For people like me, whose legal knowledge is based mainly on The Wire and This Life, Alex McBride’s account of life at the bar is therefore a shock to perceptions. There are a few barristers like Maury Levy but most are living from hand to mouth and case to case with studio flats and incapacitating overdrafts. Barristers work in 24/7 self-employment at its most precarious. The cost of training deters all but the most ambitious and for non-Oxbridge lawyers without connections and trust funds the law is a struggle, a hustle, a game, with distant prospects and no support. And the profession, like so many others, is sliding. Everywhere McBride turns he sees doors slamming shut and ladders kicked away.

His account is written in a matey, Essex Boy style that’s distinct and refreshing for a trade known for its dry and ruptured wit. Criminal barrister Gudrun Young praised his contemporary’s portrayal of ‘the agonising experience of being on an extended period of probation, the constant sense of paranoia and insecurity’ but felt the book suffered because ‘McBride’s humour is so puerile’. But his laddish layman’s tone proves surprising effective at challenging the reader’s preconceptions of courts and trials. I didn’t know, for example, that criminal law is a relatively late branch of practice, historically looked down on by lawyers who deal with property and finance. It’s a mystery to me – what is the point of going into law if it’s not criminal law?

‘The criminal courts are beguiling,’ McBride writes, ‘because their currency is the human condition. They pick through the half-truths, the tragedies, the awful luck, hapless lies, grinding stupidity, bottomless greed and zero self-control with a gimlet eye fixed on the revealing detail.’ The courtroom has always provided a stock environment for authors and dramatists, and counsels themselves are storytellers of a kind. The defendant is a dangerous villain to prosecution, a misunderstood or framed hero to defence. The courtroom is a clash of competing narratives, a play with two rival directors working from two contradictory scripts. It is the tale, not he who tells it.

Nothing else works. McBride has fascinating passages on the inadequacy of DNA evidence, CCTV and behavioural science and the unreliability of human memory. We believe anecdote over statistic and respond to story over truth. The best advocates knew this and saw the trial as an act. The right props, dress, rhythm of speech is essential. The barrister as artist is encapsulated in the figure of nineteenth-century New York advocate William Howe. He ‘sculpted a visual narrative to put his clients in the most sympathetic light… On the first day of a trial, Howe would wheel in a snow-haired mother and a wife of fragile beauty, sometimes suckling a babe in arms, but always with a string of waif-like children in tow.’ When a family could not be found, Howe simply used his own. The lawyer’s dress was part of the narrative: ‘he would start the trial nattily dressed in a loud waistcoat and purple trousers of his own design’; yet as the trial continued ‘his clothes became increasingly sombre, sepulchral even, until the day the jury was to retire to deliberate its verdict, when he would appear dressed in deathly black to underline to the jurors the horrible finality of a guilty verdict.’

The nearest the book gets to an answer to the moral question – how can you defend the guilty? – is its honest recognition that even in the best of all possible worlds some law enforcement professionals will be incompetent and others plain corrupt. There have been innocent men hanged in this country and no doubt there are still others into their second or third decade behind bars. The reason society defends the guilty is because somebody’s got to.


Max Dunbar was born in London in 1981. He recently finished a full-length novel and his short fiction has appeared in various print and web journals. He is reviews editor of 3:AM.

First published in 3:AM Magazine: Tuesday, August 17th, 2010.