Confessions of a Lawyer

by Russell Winnock

  I put the brief down. I put the pink ribbon back around it. I was pleased and exhilarated to be entrusted with such a big case, but I knew full well that I had now entered a dark world.

  Suddenly, I felt lonely in my flat. I wished I had a flatmate or a girlfriend, someone to talk to, someone to remind me of my own humanity. Instead, I put on late-night TV – there are some reruns of Friends – and fell asleep.

  The ten greatest fictional lawyers

  Some lawyers will deny watching a courtroom drama on the telly or in the cinema – funny, they deny it, but they all seem to know the plots. Me, I don’t mind admitting that I love them, even when they’re awful and I find myself screaming, ‘You’d never do that in a real court, the Judge would kill you,’ at the TV, I still enjoy them, perhaps that’s why I enjoy them.

  So, here’s my list of the Ten Greatest Fictional Lawyers; again in no particular order:

  1.Jaggers from Great Expectations – this is the lawyer who helps Pip reclaim his fortune from Magwitch. Dickens knew all about lawyers, having once been a Clerk. Although Jaggers is not Dickens’ best known lawyer, what always resonated with me was his constant need to wash his hands as though he was trying to expunge the dirt of his clients – I really get that.

  2.Perry Mason – the original courtroom-drama superhero, Mason was a star of books, radio and film. He doesn’t appear to have ever lost a trial and had an amazing ability to shoehorn a confession from the real ‘murderer’. I doubt that Mason ever got a bollocking for being late to court.

  3.Kavanagh QC – as I’ve confessed earlier, Kavanagh QC was my boyhood hero. A gruff Northern Silk brilliantly portrayed by John Thaw, Kavanagh QC was exactly how I expected every great lawyer to be – and to be fair, one or two have lived up to that fictional expectation.

  4.Fred Gailey – he’s the attorney who represents ‘Father Christmas’ in Miracle on 34th Street – and manages to persuade the Judge that Father Christmas exists – fair play, a good result in what must have been a tricky brief.

  5.Tony Petrocelli – classic maverick US attorney, Tony Petrocelli, appeared on our TV screens in the 1970s and, like Perry Mason, also seemed to never lose a case. Living in a camper van, Petrocelli also had something that every advocate would die for, a catchphrase: he would look coolly at the jury, run his hand through his hair and say, ‘Let’s go back to the scene of the crime.’ Marvellous.

  6.Martha Costello QC – wonderfully portrayed by the amazing Maxine Peake in the TV drama Silk, Martha is another Northern working-class barrister who becomes the champion of lost causes because she cares so much about her clients.

  7.Atticus Finch – from Harper Lee’s To Kill a Mockingbird, the lawyer every lawyer wants to be – a man of integrity, intelligence and moral superiority. Immortalised on the silver screen by the peerless Gregory Peck – I mean what jury or judge would disagree with Gregory Peck – the answer is none!

  8.Saul Goodman – most of my clients would give their right arm to be represented by Breaking Bad’s Saul Goodman. Goodman will, literally, do anything to protect the interests of his clients. His brash, gaudy demeanour is perfect, allowing him to be underestimated by his adversaries as he focuses on the job in hand. So popular he’s now got his own TV show.

  9.Tom Hagan – Standing Counsel to the Corleone family – wow, what a brief that is! All Hagan has to do is keep The Godfather, Vito, out of the clink, and the family’s business out of the courts. Robert Duvall plays him with a ruthless, understated cunning in Coppola’s seminal film.

  10.Lawrence Hammill QC – if Kavanagh was my boyhood hero, then Lawrence Hammill is the lawyer that I’d now love to become. Hammill is the retired Silk in the wonderful Australian film The Castle, who comes to the rescue of the blue-collar, fair dinkum Aussie family, the Kerrigans, when they try to oppose the state’s attempt to compulsory purchase their house. In a rousing closing speech, Hammill, who is acting pro bono (for free), tells the Australian Supreme Court that the love and memories that come with a house cannot be compensated for in law. Genius – definitely worth a watch if you haven’t seen it.

  Meeting Kenny McCloud

  I met Harry Ashton at the gates of Pentonville Prison. Harry Ashton is a former Metropolitan police officer who is employed by the solicitors, Hayes, Finkelstein, Brewer, as an outdoor clerk or legal executive, or some similar title. I am told that there was a time when most criminal solicitors firms had a former copper who would oversee police station interviews and take statements from clients and witnesses and act as a backup to the barrister – a bit like the proverbial gamekeeper turned poacher. Now few firms can afford to employ them – they’re a luxury, no longer covered by legal aid. And that’s a shame, because the experience and skill these men brought was invaluable to everyone who had anything to do with the process of justice.

  I’d not met Harry Ashton before but I’d seen him and knew his reputation – fierce and uncompromising.

  We shook hands. I smiled. He didn’t.

  ‘This is one of the worst I’ve ever read in my forty years,’ said Harry. I’m not sure how to react to this.

  We entered the prison and were ushered to a room where Kenny McCloud sat waiting for us. He was old, in his late sixties now. He had thick glasses and long dirty hair. His breath smelt of tobacco and I noted yellow stains around his fingers and unshaven mouth. He had a slight tremor.

  I introduced myself. ‘I’m Russell Winnock,’ I said, ‘I’m the barrister who’s going to look after you.’

  He turned to Harry Ashton with a strange smirk.

  ‘Why’ve you sent me a boy? How’s he going to look after me?’

  His accent was hard, guttural, working-class Glaswegian. His tone was mocking.

  Harry’s expression didn’t change.

  ‘Mr Winnock is one of the best young criminal barristers around,’ he said, ‘you’re lucky to have him. So you just listen to what he’s got to say.’

  The old copper’s words lifted me. Even though I realised that he would have said this regardless of who he was with, I felt at once stronger, more confident.

  I told McCloud about the procedure. I told him about the credit he’ll get if he pleads guilty and the massive sentence he’ll get if he’s convicted by a jury at a trial. I told him that I’d do everything I could to defend him, but that no one can deliver miracles and that if the jury didn’t like him, then he’d be convicted.

  He looked at me impassively, his eyes never leaving mine, never blinking, the only movement the slight involuntary shake of his hands and forehead.

  ‘So,’ he said, after I’ve finished, ‘is the evidence strong?’ A smile played across his face as he asked me this question. I tried not to be scared of this man. I tried not to hate him. Neither emotion is the least bit helpful to me. I knew that I had to keep focused, I couldn’t let myself be distracted by emotion, because as soon as I started to feel sympathy for the complainants or revulsion towards my client, I wouldn’t be able to represent him – and that is all I’m here to do, represent him, calmly, professionally and dispassionately – for right or wrong.

  ‘Your problem is that there are two complainants,’ I told him, ‘and that makes it much more difficult – I mean, a jury might believe that one of the women is lying, but they’re going to find it much more difficult to believe that both of them are.’

  He contemplated this. ‘What about any other evidence?’

  ‘Not much, really,’ I told him, ‘no forensic evidence, and no real corroborating witnesses. Just your word against that of your daughters.’

  ‘Well, they’re lying,’ he snarled.

  ‘Okay,’ I said, ‘then you should have a trial, Mr McCloud – and a jury will decide.’

  He stared at me as he considered this. I could see that Kenny McCloud was the type of man who has taken and given beatings all his life; able to control people by fear, he probably thought that he could somehow do the same with a jury, bully them into acquitting him.

  I we
nt through his daughters’ statements with him. I asked him about dog leads and timber yards and dresses and boozy breath and he replied with a simple and terse: ‘Didn’t happen’, to each proposition.

  ‘What about the dog?’ I asked him. ‘Do you remember a dog called Ralph?’

  ‘I don’t remember any bloody dog,’ he said. Somehow I find that particularly poignant – why did he have to lie about it? Surely everyone remembers their pets?

  Eventually, we parted, shaking hands. Always shake hands with your client. That’s what I’d been taught – regardless of what you thought about them.

  Outside, I turned to Harry Ashton – ‘What do you think?’ I asked him.

  ‘A proper bastard,’ said Ashton.

  ‘Yeah, but he was very clear that none of this happened, wasn’t he?’ I said naively.

  ‘Well he could hardly admit it, could he?’

  ‘No, I suppose not,’ I murmured.

  I was glad to leave Pentonville Prison, though I knew that I’d be back with Kenny McCloud soon enough.

  Cross-examination and the case of Shandra Whithurst

  On the face of it, Shandra Whithurst’s case was pretty straightforward. She was a large, jolly woman in her late forties who had been charged with shoplifting. She had gone into a supermarket, wandered around the fruit and veg aisle for a bit before walking purposefully over to the make-up section where she appeared to place four packets of ‘Luscious Lips Lip Liner’ inside her bra. Her problem was that all of this was captured on CCTV, which showed her in fairly clear HD quality, wandering from the cosmetics over towards the exit, making no attempt to pay, and being apprehended by a couple of massive security guards who manhandled her into a display of Czech lager as she protested her innocence. Interestingly, though, when the police searched her, there was no sign of the lip liner.

  Shandra had elected to be tried by a jury rather than in a Magistrates Court. In her case, this was probably quite a good shout – you see, her defence depends upon a jury being confused by the fact that, even though CCTV footage clearly showed her putting items inside her clothing, the absence of any actual goods when she was searched might cast doubt on that. I knew that a bench of hardened Magistrates who had heard it and seen it all before wouldn’t be the slightest bit concerned about the absence of the stolen goods, but a jury just might. I also knew that a jury would be more likely to be appalled by the sight of a couple of burly security guards laying into a nice middle-aged Afro-Caribbean woman – especially if I got the cross-examination right.

  I met Shandra in a conference room at court. She was lovely. We watched the CCTV together. We watched the clear images of her movements as she wandered from fruit and veg to the cosmetics – where she clearly tucked something into her bra – then towards the exit.

  ‘Is that you?’ I asked her.

  ‘Of course it’s me,’ she said.

  I smiled, then tutted appropriately as we saw the security guard grab her, causing her to fall backwards into the stack of canned beer. When the video had finished I asked her if she wanted to see it again. ‘No,’ she said, ‘I know what I did and didn’t do.’

  ‘Good,’ I said, and at this point, I took off my wig, scratched my head and asked the question that I had to ask.

  ‘Miss Whithurst,’ I said, ‘look, I’ve got to ask you this.’

  She smiled nicely at me as I paused. ‘What on earth are you doing over by the make-up aisles with your hands down your top?’

  She leant in towards me, and whispered, ‘I was itchy.’

  ‘Itchy?’

  ‘Yes.’

  ‘You weren’t stealing anything?’

  ‘No.’ She is emphatic in her denial.

  ‘And the four missing Luscious Lips Lip Liners have got nothing to do with you?’

  ‘Absolutely not. Young man, what would I do with luscious lips, I’ve already got luscious lips.’ With this she laughed throatily. I smiled. She would be a perfect witness in her own defence.

  ‘Okay then,’ I stood up, ‘let’s go into court.’

  Inside the courtroom, His Honour Judge Smithson was looking decidedly bored. Smithson had a reputation for being lazy and doing anything he could to avoid the trials that kept him from the golf course. As he spied me, he sat up. ‘Ah Mr Winnock,’ he said, ‘are you defending Miss Whithurst?’

  ‘Yes, Your Honour.’

  ‘Is this really going to be a trial?’

  ‘Yes, Your Honour.’

  ‘What about the CCTV footage – pretty damning isn’t it?’

  ‘Not in the absence of any actual stolen goods,’ I replied.

  The Judge contemplated this for a few seconds, his lips turned inadvertently into his mouth, before he turned to my opponent, Sam Wilkins. ‘Mr Wilkins,’ he said, ‘in the absence of any actual goods, how are you going to prove theft? A bit thin isn’t it?’

  The prosecutor was equally robust. ‘The CCTV footage clearly shows appropriation, Your Honour.’

  The Judge sighed wearily. ‘Very well then, gentlemen, let’s get on with it.’

  The jury piled in. The usual suspects: middle-aged men in sports jackets; old ladies with newly done hair; youths just thankful that they are in the jury box and not the dock, and the single attractive female.

  They looked disappointed when they were told that they were about to try a case involving the theft of 25 quid’s worth of make-up. They were probably hoping for something involving a bit of death and mutilation. Still, this was what they had and I was determined that they would end up seeing things my way.

  Sam Wilkins opened the case for the Crown, then called his first witness – one Eddie Horton.

  Eddie is the first of the two massive security guards who would be giving evidence. Wilkins gets to question him first. Wilkins is a sure-footed if unspectacular prosecutor. He took Horton through his examination-in-chief, which allowed Horton to describe in his own words how he spotted a large lady of African appearance ‘clearly conceal items of make-up within her clothes’.

  ‘Don’t be shy,’ said Wilkins, ‘where exactly?’

  ‘Her bra, Your Honour,’ said Horton coyly.

  After Wilkins had finished, it was my turn to cross-examine the witness.

  Some barristers swear that there is an art to cross-examination, a particular way to best put forward your case and take down a witness. Some barristers write down all their questions with meticulous care; some do it effortlessly off the top of their head because they are that good; and some, let’s face it, find the whole process a challenge. Me, well, I have no set way. Maybe I will once I’ve got a few more years under my belt, but at the moment, when I get to my feet to cross-examine, I’m never entirely sure what I’m going to do until I’ve started.

  You see, to me, being on your feet questioning a witness in a Crown Court is, and I don’t want to sound excessively dramatic or self-important about this, an intensely human experience.

  For me, when I deal with a witness, I am embarking upon a series of rather intimate relationships: first, with the witness, who I am questioning; second, with the Judge, who I am having to ensure doesn’t stop me for asking irrelevant or unlawful questions; third, with my opponent, who wants to beat me; fourth, with my client, who wants me to ask the right questions and put their case forward effectively; and fifth, perhaps most significantly, with the jury, who you want to draw towards you.

  In this case, I would be attempting to get this jury to dislike Mr Horton, but I wouldn’t bully him or shout at him, ridicule him, or patronise him, because there is a good chance that they would end up disliking me if I did that. If I can possibly help it, I won’t call him a liar, either, because if I suggest that, and the jury don’t agree with me, then me, my case and my client are doomed.

  Instead, I would attempt to get him to agree with me as much as I could, because that will make it easier for the jury to agree with me in due course.

  I would of course try to trip him up, but I would do so in the nicest possible
way.

  And, in accordance with one of the first and most important rules of advocacy, I would try to avoid asking him questions to which I didn’t know the answer – because if I looked silly, I’d lose the confidence of the jury, which would be disastrous.

  I got to my feet, trying to look confident. Trying to look like I knew everything there was to know, trying to give the impression that I was a massive and glorious bull elephant and that the courtroom belonged to me. Of course I have no idea if I achieve this because no one ever tells you.

  ‘Mr Horton,’ I said. And all eyes fell on me.

  It began.

  It is theatre, and that’s why I love it.

  I started by asking a few easy questions – stuff he couldn’t possibly disagree with.

  ‘You’re a big man, Mr Horton?’

  ‘Some might think so.’

  This is the best response he could have given me. It’s evasive and told me straight away that he was going to be defensive. Most juries don’t like defensive, evasive witnesses. What he should have said, the correct, easy answer that would have posed me more difficulties would have been, ‘Yes, I am, massive.’ But Horton wanted to be clever, so he doesn’t give me a straightforward answer, and in the process of trying to look clever, he made himself look shifty.

  I questioned him about the supermarket and the procedure and his training.

  ‘How are you trained to deal with people who may have been shoplifting?’ I asked him.

  This is an open question, by that I mean that I haven’t put it to him as an assertion which requires only a yes or no response, as in ‘You’re trained to be polite and helpful aren’t you?’ which is the way we normally ask questions when we want to control the witness. I’ve asked him an open question as I’ve got a good idea what he’ll say, and the answer will have more force coming as a result of this type of question.