How a criminal lawyer defends someone who might have done it

At an event titled 'I’m a Criminal Lawyer - Here’s How I Know if My Client is Guilty', Joseph Kotrie-Monson will take the audience through the techniques lawyers use to win in court, and how to build a case which will convince the jury.

He will also answer the age-old question - how can you represent someone if you suspect they're guilty?

Mr Kotrie-Monson tells The Herald: "It’s a question that makes certain presumptions which once you’re doing the job you realise don’t really apply.

"The temptation is at the end of the case to say ‘this person is guilty, we now know that and the lawyers must have been trying to help them avoid the consequences’. Or people just see a few facts and jump to conclusions before the case is even finished.

“Both of those things are wrong, because the first relies on hindsight and the second is a very dangerous way of coming to judgment about something as important as criminal guilt.

“The question we’re asked invariably is a personal one: ‘how do you deal with it in your conscience that you’re representing a person who has done or been accused of a terrible thing?’.

“People also often say ‘oh you know they’re really guilty’ and the implication of that is some kind of omniscience or Godlike knowledge that lawyers don’t have any more than anyone else.

"We’ll talk a bit about that at CrimeCon, but as a lawyer you also become aware of the value of certain types of evidence, how to deploy it, how to make sure it’s presented in the right way – but also how much value to give it.

“An easy example is that something like CCTV we trust more than witness testimony. We trust it less than we would have trusted it 20 years ago because of AI and the fact that digital evidence has been democratised, it’s available for people to manipulate at a low cost base.

“That’s why you have people being mimicked in Bitcoin frauds or various investment frauds which are apparently endorsed or supported by celebrities – you’ve even got fake AI political broadcasts.”

A running joke in the 1994 film The Shawshank Redemption and its source, Stephen King's novella, is that each inmate in Shawshank prison claims to be innocent - usually with the rejoinder "lawyer f****d me".

Upon informing friend Red that he didn't actually kill his wife, Andy Dufresne is informed: "Everyone in here is innocent, you know that?".

Read More: 'We were essentially in an experiment': What it's like to grow up in a cult

As a criminal lawyer then, how does one go about defending someone who may very well have actually done it?

Mr Kotrie-Monson says: "This is very important, I’m glad you’ve raised this.

“It’s really, really important that as a lawyer, even when you have experience of being able to pick out certain facts and say ‘that’s a problem straight away’ that you don’t operate on the basis that you’re making the judgement that the jury is supposed to make.

“Your job is to organise according to the instructions of your client, investigate whether you can support that through evidence, look at the evidence on the other side and see if you can reasonably undermine it in a way that’s credible for a jury. Your job is to not have an opinion.

"What I intend to do at CrimeCon is take people through a scenario, which is a realistic case, and put them in the position of the lawyer. As certain evidence emerges, not chronologically in terms of how it happened but chronologically in terms of how a lawyer might find out these pieces of evidence, I’ll ask them at each stage: do you think the client did it, maybe did it, or didn’t do it. And we’ll see how those answers change as we review those different pieces of evidence.

“As a result people will start to really feel, as lawyers themselves for a short time, how it is that I can answer with confidence that question: how do I represent people when I suspect they’re guilty?”

Mr Kotrie-Monson and his firm have taken on a number of high-profile cases, including defending people accused in the Rotherham grooming scandal.

There the attention on the case can quickly create a toxic atmosphere - regardless of what is actually happening in court.

He says: "In the most controversial case, or the case you find most revolting, especially when there is more than one person charged in a conspiracy there will often be overwhelming evidence against certain members of that conspiracy.

“But there’s often a smaller group of people within the same case who may have been present at certain times and not necessarily have an awareness of what was going on.

“For example, let’s say there’s a serious multi-million fraud case that’s acting out of a legitimate business. There will be the fraudsters and there will be people like the record keepers, or the office junior, or the receptionist, who won’t know what’s going on even if it’s going on right in front of their eyes.

“When there are these big controversial cases, the assumption is that we know there’s this strong evidence against some defendants – but that doesn’t mean everyone is guilty."

An apposite and recent example is the recent conviction of 21 people of serious sexual offences against children in Walsall.

The offences took place over almost a decade against seven children aged 12 and under, with the longest sentence handed out 20 years.

Mr Kotrie Monson says: "There were 22 defendants, I wouldn’t even recite what the details were because it was so bad. We’re a firm that specialises in these really bad cases and it was the worst we’d ever done.

“Our client was the only one out of the 22 defendants who wasn’t convicted.

“The temptation of seeing such a horrible case - where you can see from the beginning that everyone else is grotesquely, comically guilty - is to say it's SO obvious that their behaviour points to absolute guilt. But we have to approach the evidence against our client specifically in a dull, restrained way and be reluctant to draw conclusions – and a jury decided she didn’t do it.

“With the sheer number of other people convicted, it shows that sometimes the police and CPS can succumb to that same confirmation bias about everyone who might have been in that environment, that they must be guilty – but not everybody is.”

That confirmation bias has recently come into sharp relief in Scotland with the conviction of Emma Caldwell's murderer, Iain Packer.

Read More: Emma Caldwell's family secures public inquiry into police murder investigation

He had walked free for close to 20 years after police identified four Turkish men as the most likely suspects, spending £4m on an investigation which ultimately collapsed.

Following Packer's conviction Police Scotland issued an apology for the way it had handled the case.

Mr Kotrie-Monson says: "That case is just another example. And it doesn’t necessarily mean that the police have behaved improperly or corruptly, it just means they’ve made a mistake.

“It’s difficult, because part of the job of police is to be suspicious, that’s part of what makes police effective.

“The psychology is to have a fairly cynical and suspicious approach and looking for markers which qualify someone as a potential offender.

“Differentiating between that, which is the police’s job, and a lawyer’s job which is logical, slow analysis and then presentation – that’s what the public should err toward when they’re reading about these things.

“But then they don’t always get all the facts, they get the facts that are most visceral and interesting, and the reason for that is that it makes good, entertaining writing.

“Unless something is engaging people won’t read it anyway, so it’s not even the journalists’ fault – what ends up in the papers is the most visceral stuff, but as a result some of the details which give it the shades of grey or make it a little bit more complex don’t often make print.

“We’ll take everyone through this scenario, I’ll swear them in as solicitors and barristers for the purposes of our exercise – and we’ll see how everybody does.”

Joseph Kotrie-Monson will appear as part of CrimeCon in Glasgow on April 27. Tickets are available here