A street fight: I smashed a few heads, but took a couple of blows too. Now I’d really appreciate it if you could piss off. If you don’t, and keep talking, I’ll headbutt you. Keeping in mind the respect and friendship we feel for each other, of course.
I didn’t say that. I nodded and replied that it was nothing, I’d fallen off my bike and grazed myself. Then I smiled, trying to convey, in a single expression, respect and friendship and an urgent request to go away and leave me in peace. It must have worked because Tommaso-Lorenzo gave me a slap on the back and told me he’d leave me to follow the lecture. Result.
In the meantime, Larocca had started his presentation.
“For lawyers as for magistrates, identifying – and respecting – the rules of ethics requires before anything else an effort of intellectual honesty.
“When we observe the world of criminal justice without allowing ourselves to be misled by rhetorical and moralistic prejudices, we discover some disturbing truths. We have to take these truths into account if we want to interpret our respective roles in an ethically correct and unhypocritical way.”
I noticed he had some papers in front of him, but he barely looked at them. He simply turned one over at regular intervals and glanced quickly at the one underneath.
“The first disturbing truth is that very often – certainly in the vast majority of cases – defendants, regardless of the constitutional presumption of innocence, are wholly or partly guilty of the crimes with which they are charged. Of course, some are innocent, but they’re a minority.”
He made a studied pause and looked around at his audience, who were hanging on his every word. The argument was deliberately provocative, although basically true. Larocca was a good orator.
“Both magistrates and defence attorneys are aware of this truth, even though, for different reasons, they often deny it or don’t admit it. One of these reasons is a defective or hypocritical understanding of the presumption of innocence as defined in article 27 of the Constitution. A criminal lawyer who makes his living from that work and who maintains that most of his clients are innocent is either a liar or a fool. And if you’ll allow me a little personal digression, there are few things that annoy me more than certain lawyers who babble on about their clients’ innocence as if they feel uncomfortable with their role, or as if they think that all judges are stupid. Not that I’m saying that the group to which I belong is immune from the virus of stupidity…”
Another pause, underlined by an expression of false innocence – almost a grimace – to allow his audience, composed mostly of lawyers, to enjoy the joke. Some laughed, some exchanged a few words with their neighbours: they felt united in the healthy complicity of the intelligent against the stupid. Those who feel this solidarity most strongly are the most stupid, I thought. The joke, in any case, was classic Larocca. It spoke of his contempt for the incompetence and trickery of some of his colleagues.
The murmur died down and he resumed.
“The work of the criminal lawyer consists, mostly, of representing guilty defendants – guilty, often, of serious and repugnant crimes – and of trying, by all legitimate means, to get them acquitted. I repeat: representing guilty defendants and trying, by all legitimate means, to get them acquitted.
“If that is the case – and it is – it’s necessary to understand how the work of a lawyer can be compatible with ethics. And not just the work of a lawyer, but the work of a judge too, for even the work of a judge – and this is something we often neglect – can be sensitive from an ethical point of view. We should never forget that judges have other people’s freedom in their hands and, consequently, often their lives, too. It’s an aspect that should fill us with dismay and yet we take it for granted.
“Our problem, therefore, is twofold: how to admit the ethical legitimacy of defending someone guilty of terrible crimes, and how to admit the ethical legitimacy of one person depriving another person of his personal freedom.
“Where do we locate the ethical legitimacy in these two problematic spheres? Where do we locate the single idea of justice that we can all share without being influenced by the diversity of our moral standpoints?
“We locate it in the rules of procedure. The rules of procedure and our respect for them are the only way to see that justice is done. Basically, there can be no real justice outside a respect for the rules of procedure.
“The judge and the defence attorney mustn’t let their personal beliefs and their moral frame of reference interfere with their work and the respective choices they make. The only shared and shareable common ground is that of the rules of procedure, which judges must make sure are observed without worrying about the consequences, and which lawyers must respect without worrying about the consequences.
“You don’t like what I’m saying? You’d prefer a more romantic idea of justice? So would I, but unfortunately such an idea is often a rhetorical device, and it’s often precisely those who talk about it the most who are the least interested in obtaining it. Often those involved in the proceedings aren’t interested in getting justice. They’re thinking about other things, because they’re human beings.
“Defence lawyers don’t want justice. In other words, they don’t want the guilty to be sentenced or amends to be made to the victims. They want to win cases. And I add: they’re right to do so, because that is their role in the mechanism, in the overall picture. If defence lawyers didn’t want to win cases, defendants would be deprived of real protection, and in particular innocent defendants – however few of them there are – would be at greater risk of being unjustly sentenced. When a defence lawyer says he wants justice to be done, he’s almost always lying, consciously or unconsciously.
“You know the old joke about the lawyer who’s just won a difficult case, phones his client and tells him that justice has triumphed. Without hesitation, the client replies: Never mind, we’ll appeal immediately…”
Again a few laughs, a few murmured exchanges. I noticed that I, too, was smiling. It was an old joke, but the kind that endures because there’s an element of truth in it.
“The defendants don’t want justice, they want to be acquitted. The defendants’ counsel don’t want justice, they want their clients to be acquitted.
“And now I’ll say something that’s a bit hard to take. Even prosecutors don’t want justice. But – except in a few rare cases of clear bad faith – they don’t know it. They think they’re pursuing justice, but they often confuse the idea of justice with a sentence passed on a defendant they consider guilty. And since for many of them, a sentence passed on those they consider guilty is justice, they’re ready to accept, to ignore, or even to cover up the breaking of the rules of procedure, which if followed might lead to the acquittal of a defendant they consider guilty, especially if it’s of a serious crime.”
It struck me that if I were a prosecutor, one of the good ones I knew and who behaved impeccably, I’d have been annoyed to hear a statement like that.
“You might object: at least judges are interested in seeing that justice is done. They haven’t – they shouldn’t have – any interest in one result rather than another. Unfortunately, things aren’t so simple.
“Do you have any idea how many rulings by examining magistrates that I have to deal with as head of the court of appeal are a copy – without a single word changed, without a shred of genuine argument, without a shred of critical control – of the prosecutor’s petition?
“Does a judge who copies a prosecutor’s petition word for word, even leaving in the occasional grammatical error, want justice? Maybe he’s only trying to do as little work as possible. Or maybe he feels he’s on the same side as the prosecutor and the police. Maybe he’s convinced that his job is to get rid of criminals, or presumed criminals, rather than guarantee that the rules are respected.
“Does the judge who realizes he’s made the wrong decision, but argues it in the most nit-picking way possible because he doesn’t want his rulings to be thrown out on ap
peal or overturned in the Supreme Court, want justice or is he thinking of his career? Is his own narcissism the dominant factor?
“I could give many other examples, but I think you get the idea. The members of each of the groups working in the criminal courts are convinced, often in good faith, that they’re pursuing justice, but it’s an optical illusion.”
He leafed through the pages he had in front of him. Caught up in the momentum of what he was saying, he had raced ahead of his own notes and was now finding his place. Or else it was only another theatrical ploy to make the most of the pauses and keep the audience’s attention.
“I’m sure many of you have felt a sense of unease in listening to the things I’ve said so far. That’s what I wanted. I wanted these unpleasant truths to make you uneasy.
“My intention was to prompt you to think outside the conventional patterns, to think about the elements of hypocrisy and even brutality lurking in our criminal justice system. To draw your attention to these elements, I’ve used the weapon of paradox and exaggeration. Of course not all prosecutors, not all judges are unaware of their duties; and of course many defence lawyers know perfectly well that their task isn’t basically to see that justice is done, but to carry out a role which guarantees that the rules are respected.
“The reality isn’t only the anguished and surreal one we see in the distorting mirror of paradox. But nor is the legal system an idyllic place where we always succeed in harmoniously combining the rules of the law with the demands of justice. Such an idyllic place doesn’t exist.
“Anyone who experiences the everyday reality of the criminal courts knows perfectly well the kind of influence that incompetence, hypocrisy, often mistakes, and sometimes even dishonesty may have on the final outcome of the legal system. He knows perfectly well how often the principle of equality before the law is damaged by a lack of culture and a poor sense of rules and roles, because of bias, illegitimate personal aspirations or even simple intellectual laziness.
“To make sure that justice is done, we need to free ourselves of false myths about justice. And in order to free ourselves of these false myths, we need to destroy them, because they’re tenacious. If we merely set them aside, they come back and again overwhelm our minds, preventing them from functioning in the right way. The right way is the way guided not by emotion, but by reason.
“To be aware of what I’ve said shouldn’t lead to a resigned recognition or cynical acceptance of the rules of a game that’s inevitably unjust and brutal. We all of us, judges and lawyers alike, have a duty to reject cynicism and resignation.
“This rejection would be meaningless and futile if it were not solidly argued, if it were merely a general, however noble, aspiration to justice and an equally general willingness to respect the rules.
“Of course, it’s certain that the guarantees embedded in the process are also limits to a free – indiscriminate? – search for the truth. If, for example, we could order phone taps merely on the basis of suspicion, of conjecture by the investigators, it would be easier to capture criminal conversations and discover the perpetrators of serious crimes.
“If it were possible to question suspects without a lawyer present, it would be easier to obtain confessions.
“Does that mean that rules and guarantees are incompatible with an effective search for the truth? I don’t think so.”
At that precise moment, for no reason, or rather, for no reason I was able to pin down (maybe because I was surrounded by young people who were embarking on their legal careers), I recalled a few scenes from my first months as a trainee prosecutor. Trivial things – queueing up at a clerk of the court’s office, filing a petition, asking for a postponement in a hearing at the magistrate’s court – that I would never have thought could still make me feel emotional. And yet, unexpectedly, those memories broke my heart. They filled me with an almost unbearable sadness and nostalgia. It was a strange nostalgia, because the painful memory of my youth was mixed with a different sensation, something like a feeling of having wasted my time, of not having done what I should have done, of having – out of fear, cowardice or laziness – been content with second best.
I remembered a sentence I had read a few weeks earlier: It’s never too late to be who you might have been.
By the time I tuned back into Larocca’s lecture, he was nearing his conclusion.
“Does nobody really want justice? And, in a broader perspective, can we dispense and, above all, obtain justice? These are questions to which it is not possible to supply an answer in the brief space of an event like this. Among other things a shared answer would imply a consensus – one that doesn’t in fact exist – about the meaning of the concept of justice, which at one time or another has been compared with legality, impartiality, equality, whether formal or substantial, and so on.
“What is certain, however, is that, between the radical scepticism of those who consider the very aspiration to justice as utopian and hypocritical and the more or less concealed fantasies that are basically just new versions of ‘an eye for an eye’, there exists a space of rules, guarantees and rights. Rights of defendants and suspects, of course, but also of the victims of crimes. It is in this space, the space of jurists, our space, that it is possible and lawful – with difficulty, but protected from abuse and prevarication – to try to reconstruct the truth, establish responsibility and, last but not least, dispense punishment. With an awareness of our limitations and an acceptance of the idea that in many cases a guilty person will be acquitted and that this is the price to pay for a system in which it will be difficult (although not impossible) for an innocent person to be found guilty.
“Each one of us is free to call the results of this effort whatever he chooses. Even justice, of course.
“Thank you for listening to me.”
For a moment, silence hung in the air, almost dizzyingly. Then loud applause broke out. After a few seconds, I, too, started clapping.
12
While the applause was still ongoing, I moved towards the exit. I was at the door when our eyes met. Larocca changed expression, losing the smug self-confidence he had exhibited until that moment. My presence reminded him of an unpleasant thought, something he had dismissed for the space of that morning and which now reappeared in all its disturbing force. He nodded in my direction and made a barely sketched gesture with his hand, indicating that he wanted me to wait for him. For at least five minutes, there was a flurry of smiles, congratulations, thank-yous and handshakes. With a touch of contempt, I observed the collective servility of that little crowd. Then I, too, was struck by an unpleasant thought. I was there. Larocca was a client of mine, but if he hadn’t been an important judge would I have gone to see him to talk about questions regarding his case? Or would I have considered it completely natural to summon him to my office for that kind of communication? I felt uncomfortable and tried to think about something else. I went back to watching the action that was taking place behind the speakers’ table. From the grimace of regret the head of the bar association was giving, I grasped that Larocca had just said that he had to go. The two men shook hands for a long time in an overly emphatic way. Larocca also said goodbye to the undertaker, whose expression had remained unchanged the whole time.
When I saw that he was starting to move away from the table, while still shaking hands and saying goodbye, I left the lecture theatre to wait for him outside. I didn’t want everyone to notice that I was the reason for his haste.
“Hello, Guido,” he said. His face was torn between surface cordiality and an underlying apprehension.
“Hello, Pierluigi. Can we go somewhere and talk?”
“Do you have good news or bad news?”
“Half and half. Partly good, partly a little upsetting.”
He was unable to repress an expression of impatience, mixed with a slight dismay.
“We could go to my office, but we’d have to move to the other courthouse. Or else your office, even though it’s a bit fur
ther. Or even to a nearby bar or café, whatever you prefer. In any case, you can start to tell me while we’re walking.”
We headed for the centre and looked for a café that had slightly isolated tables. Going to the courthouse together on a Saturday would have attracted attention. Not that there was anything unlawful in what we were doing, but the more secret we could keep this matter – and therefore our relationship, which wasn’t judge–lawyer but client–lawyer – the better it was.
“I heard your lecture.”
“What did you think?”
“Very good. A few years ago I read a book by Alan Dershowitz that said lots of similar things about the hypocrisy of legal systems.”
“I haven’t read it. What’s it called?” There was a hint of tension in his voice when he asked this, as if he meant: they were my ideas, I didn’t get them from anyone else.
“I don’t think it’s ever been translated into Italian. It’s called The Best Defense. It’s a collection of cases. Very interesting, even instructive, I’d say.”
If I think about it now, there was a touch of wickedness in my talking so calmly and in such a detached manner, taking my time in getting to the point when he was so obviously on tenterhooks.
“I’ve found out something.”
“I was right, wasn’t I? There are proceedings pending?”
“Yes.”
“Where does the information come from?”
“I’m sorry, Pierluigi, but I can’t—”
“No, no, forgive me. I just wanted to know if the source is reliable.”
He was speaking quickly, much faster than usual, clearly embarrassed at my denying him something. He couldn’t object to it, but it clearly bothered him. People used to having others say yes, to always being right – and there are several judges who fall into that category – don’t easily accept refusals.
“Yes, very reliable. I’ve also seen copies of some documents.”
“Do you have them? What kind of documents are they?”
A Fine Line Page 10