I’m all for defending lawyers doing their work expertly and aggressively, and I’m also for getting the right outcome when it’s possible to do so. That’s why I’m not a judge – this all just baffles me. Defending reviled figures must be a lonely sort of thing, all the more credit to those who do.
That said…and with compassion to all…is there now a fad to present reviled figures as infirm, insane, or otherwise unable to stand trial? Are the insane responsible for their actions? This is a huge question, and the answer takes wide pendulum swings as societies trade in their paradigms for new ones. This happens once or twice a century, sometimes more.
On July 26, Breivik’s lawyer, Geir Lippestad, said to the press, “This whole case indicated that he is insane.” We may never know, but possibly Lippestad coached his client to admit to his acts while pleading not guilty, just to reinforce that image. In Norway, a court that agrees to this formula can give a maximum sentence of no more than 21 years, and the prisoner can walk free after 10 years if he/she becomes eligible for parole.
Lippestad faced the press July 26 and spoke freely about his client: “He believes that when you’re in a war you can do things without pleading guilty.” It is Lippestad’s duty to say these things. The surprise is that Norwegian conventions seem to allow him to do so in public, even before the trial.
There is another side to the discussion. Police Security Service Chief Janne Kristiansen, enraged by Lippestad’s statements, countered them: “Breivik is evil, not mad.”
She spoke to the BBC on camera, the same day: “I have been a defense lawyer before, and in my opinion this is clearly a sane person because he has been too focused for too long and he has been doing things so correctly,” she said. “In my experience of having had these sorts of clients before, they are normally quite normal but they are quite twisted in their minds, and this personal in addition is total evil.”
This is more than a conversation or dispute among jurists awaiting the real skinny from psychiatric experts. It is the essence of a society’s take on responsibility for a person’s actions. To me it seems that we are in the thirteenth century, if we must turn to sacerdotal pronouncements for guidance on this. The psychiatrist is trained to heal, I think, and to suspend judgment in the process. A psychiatrist would have lots to say about the meeting point of insanity and responsibility — and valuable input at that — but I’m uneasy about a single healer’s opinion in a matter that requires a social consensus. It’s unfair to the psychiatrist.
Likewise the hair dyed mummy (ok, well, pun intended) on the gurney yesterday in Cairo, behind a cage. The next time I order the killing of two thousand unarmed citizens, I certainly want Mubarak’s lawyer by my side to help me through the defense process. This skilled man has said “the former president is seriously ill,” as he may be. The BBC, meanwhile, says, “Our correspondent says many Egyptians are skeptical about this.”
Maybe the point is not “is he sick?” The point may be “If he is sick, does he get a pass?”
I repeat: I am not questioning the skill or respect for the professional who defends a reviled figure. We need this as part of the process. I only recoil at the thought of a jury or judge coming down one way or the other, without a guiding social consensus on who is responsible for heinous acts. Lawyers will and should use every trick. Honor and professionalism require it.
The prosecution, meanwhile, is entitled to do the same. I guess Breivik and Mubarak are going to hell, if there is a hell and if there’s an afterlife. (That’s a lot of ifs.) Meanwhile we should be thinking hard about what to do with the people we’d like to skewer on a hot spike (but we rightfully distrust our instincts) and whether to put them in a cage and throw away the key. There’s always frying, if you believe in that sort of thing.
Punitive justice makes the world go round, and some cases go beyond the pale. Meanwhile, if a mass murderer can be separated from his acts either by lunacy or infirmity, so do the rest of us have the right to sequester the actor, as a precaution. And maybe precaution, not retribution or revenge, is reason enough to do so.
Apparently Breivik was planning to get former Prime Minister Gro Harlem Brundland at Utoya, but she was running late that day. I’d love to get her opinion on ten-years-out-on-parole as a possible outcome.
Dan Whitman is Assistant Professor of Foreign Policy at the Washington Semester Program, American University. As Public Diplomacy officer in USIA and the Department of State for more than 25 years, he drafted and edited speeches for U.S. ambassadors in Denmark, Spain, South Africa, Cameroon, Haiti, and Guinea-Conakry. A senior Foreign Service Officer, he retired in 2009 from the Bureau of African Affairs, U.S. Department of State.