We, the Accused

"Capuchin Classics sent me this, asked me to read it and consider doing a foreword. I thought: Oh God, I don’t like to read books about the death penalty; I like to read slightly more cheerful stuff when I’m not doing cases. But I did read it and I was absolutely captivated. This was written in the 1930s but I thought it was a brilliant book that captured so much about the judicial process. And a very well written book as well. The title sums it up – We, the Accused – the way that the system accuses itself. And there are just lovely quotes in there about where the governor of the prison comes to see the humanity of the person he’s meant to be killing. That rang very true with me because it isn’t that the defence is the good guy and everyone else is a bunch of bastards – very often the governors of some prisons are fantastic human beings who really didn’t want to do some of the things that the politicians made them do. Yes, I suppose so. One of the crimes that I think we can all agree that everyone could do is homicide. Now whether it’s homicide by accident, when you hit someone while driving a car, or what we refer to as murder, everyone under the right circumstances, or perhaps I should say the wrong circumstances, could kill someone. What the book tries to do is to explore that in a context of someone who’s a human nonentity, accused of poisoning his wife. Sympathy tends to dehumanise. If we ask a jury for sympathy because the prisoner was abused or because the prisoner is mentally ill, that tends to dehumanise them. Empathy is what humanises them. The best example I can think of was a guy I represented years ago, who, according to the experts, the psychiatric experts, had no real defence. They said there was nothing wrong with him. I thought they were patently wrong but we were left without any way to explain what was a pretty terrible crime. The one thing that ultimately characterised this individual was his religious faith. Lawyers, particularly left-wing lawyers, tend to be a bunch of atheistic zealots who are very deeply uncomfortable when talking about religion, which I think is a terrible mistake. People can think what they like about religion but jurors understand the language of religion. I once made the mistake of quoting Shakespeare to a jury, and an old Georgia lawyer in the courtroom said to me, “Clive, I’ve used that quote myself but when I say it, I say I think it was in the Book of Job.” I don’t think that lying to jurors is ever good, but on the other hand I got his point. The language jurors speak is the language that means a lot to them, which tends to be the language of their religious faith. In this particular case, my guy was a Pentecostal Christian. While Pentecostals very often in America would execute just as soon as look at you, according to what they initially say, when you dig into their beliefs they believe in redemption far more than the average person. Indeed if you ask a Pentecostal juror what the worst crime that you can commit is they won’t say murder, they’ll say, very often, the failure to accept Jesus Christ as your lord and saviour. Now in this case, pretty much all of the jurors were Pentecostal Christians. They really understood that my client was trying to climb the mountain and Satan would grab his ankle and pull him back down again. They understood him far better than the prosecutor and they came back very quickly, in his favour – avoiding the death penalty. That really taught me the lesson that it was their empathy for him. They understood where he was coming from. That was the key thing, not their sympathy for what he had been through as a child. It doesn’t apply across the board. You have to know what the jurors’ language is. It’s a matter of making the decision-maker see the humanity in the individual. Sometimes it can be mental illness. For example, I had a case where we got 12 jurors all of whom had a deep personal experience of mental illness and so in that case they could really empathise with what the prisoner had come through because they had that in their lexicon. They saw him as being akin to their relative who had gone through the same thing. Empathy starts in so many ways. It’s about stories that you could relate to. In America it’s often religious faith because religion is very important in America. They see churchgoing people as akin to them. It would be a very different story in Britain. Maybe you could base it on silly things such as what football team they support. Frankly, I would execute anyone on the spot who supports Arsenal. Only because of what they did to Ipswich Town last season, which is my team. I speak American sports language. I lived there 26 years. I can bore you about baseball as well. This book was very widely read at the time and much admired. I think it helped people see even guilty people facing the death penalty as human beings. Raymond is a very fine writer. Theoretically, it wasn’t abolished until 1997, when they finally got rid of it technically for treason or something. But in reality it was abolished in the 1960s."