Not indefensible

Kasab8217;s defence lawyers will ensure that his trial does not descend into an unpredictable drama

No lawyer wants to defend Ajmal Amir Kasab. I understand the sentiment: after all, he was captured on film bringing the city to its knees. But I still believe that principle and commonsense require that Kasab be defended. Even the most reviled of defendants must receive legal representation because criminal defence, as an ideal, is more about defending liberty, fairness and the rule of law, and less about defending the actions of individual defendants. That 8220;liberal8221; claim is valid even in times like these; and Kasab must, like any other criminal defendant, receive a vigorous defence. But many 8220;conservatives8221;, and others who believe in a tougher, more 8220;outcome-oriented8221; approach, may be unconvinced.

I would reply to that here with not a 8220;liberal8221; argument but a 8220;conservative8221; one. I argue that like 8220;liberals8221;, 8220;conservatives8221; should want 8212; if for different reasons 8212;Ajmal Kasab to be defended by the best criminal lawyers in the land. But according to those who oppose representation for Kasab, wily defence lawyers will conjure up mythical defences that will make it hard to get a quick and clean trial and presumably, conviction in what otherwise appears to be an open-and-shut case. And if no lawyer defends him, the legally inept Kasab will defend himself and get himself convicted. Simple, right? Not so. In fact, in a case as factually poor as his, Kasab8217;s defence lawyers are ironically the ones most likely to ensure that his trial does not descend into an unpredictable or hurtful drama.

Despite what defence lawyers like to claim, they are more often as good or as bad as their client8217;s cases. The reason is simple: like professional chess, the criminal defence process consists of rehearsed and often predictable lines of enquiry, attack and counterattack. But it is very different when defendants defend themselves as so-called pro se defendants because their lack of formal legal training makes them an unpredictable and tenacious lot 8212; a shock to the outcome-oriented.

Consider Exhibit A: The trial of Hermann Goring 1946. At the Nuremberg trials, Hermann Goring8217;s guilt was thought to be indubitable but as a pro se defendant, he ran circles around the chief prosecutor Justice Robert Jackson. Justice Jackson was prepared for combat but only for the style and technique of a regular defence lawyer and was surprised by Goring8217;s legal asymmetric warfare. And if like in Goring8217;s trial, history records that Ajmal Kasab was convicted despite, rather than because of the prosecution, that will be a national embarrassment.

It is of course unlikely that Kasab is as brilliant as Goring but we8217;ll never know till it8217;s too late. To be sure, though, let8217;s consider a more realistic scenario: Ajmal Kasab doesn8217;t adopt Goring8217;s unconventional but sophisticated defence and instead adopts a crude but effective strategy of disruption. He will not have to look far for a perfect template. Consider Exhibit B: The trial of Zacarias Moussaoui 2001-2006. Moussaoui was the so-called 8220;20th hijacker8221;, the man who nearly made it onto the hijacked airplanes during the 9/11 attacks. At his trial in the United States, Moussaoui refused defence counsel, allowing him to brazenly disrupt proceedings by shouting in court, making irrelevant motions and filing bizarre pleadings, including the memorably titled 8220;No Pig Man Role in the Moussaoui Deliverance Scenario8221;. He was convicted but not before he had prolonged his trial for five painful years and acutely embarrassed the court, the prosecution and ultimately the United States. It had been a trial that had pleased no one, except Moussaoui and his jihadi brethren.

Would it have happened had Moussaoui been professionally defended? Unlikely. A defence lawyer who contemplates disrupting or acquiescing in the disruption of a trial faces the loss of his reputation, his law licence and even the prospect of being sent to prison. Defendants like Ajmal Kasab, facing the death penalty and with reputations as valuable as mud, are unlikely to be so deterred. In fact, there is no better way for Kasab to go out in a blaze of jihadi glory than for him to use his high-profile trial as a propaganda vehicle to spew venom against India for alleged atrocities in Kashmir.nbsp;

Of course none of these terrible scenarios need happen. But if on the other hand, Kasab decides to fight and is even half as effective as Moussaoui or Goring, every 8220;conservative8221; will rue not giving him a defence lawyer. At the other end of the ideological spectrum, 8220;liberals8221; may be concerned that I am advocating the silent and grossly unethical subversion of a criminal defendant8217;s case. Far from it. I sincerely believe that all are entitled to a vigorous, professional and genuine defence. But my point is that giving defendants like Ajmal Kasab a proper defence, is also a rational choice for the those who want a quick and drama-free trial. nbsp;

The writer is a New York City-based attorney

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