About Me

My photo
Melfort, Saskatchewan, Canada
I am a lawyer in Melfort, Saskatchewan, Canada who enjoys reading, especially mysteries. Since 2000 I have been writing personal book reviews. This blog includes my reviews, information on and interviews with authors and descriptions of mystery bookstores I have visited. I strive to review all Saskatchewan mysteries. Other Canadian mysteries are listed under the Rest of Canada. As a lawyer I am always interested in legal mysteries. I have a separate page for legal mysteries. Occasionally my reviews of legal mysteries comment on the legal reality of the mystery. You can follow the progression of my favourite authors with up to 15 reviews. Each year I select my favourites in "Bill's Best of ----". As well as current reviews I am posting reviews from 2000 to 2011. Below my most recent couple of posts are the posts of Saskatchewan mysteries I have reviewed alphabetically by author. If you only want a sentence or two description of the book and my recommendation when deciding whether to read the book look at the bold portion of the review. If you would like to email me the link to my email is on the profile page.

Tuesday, May 21, 2013

"G" is for Guilty?

In titling this post "G" is for Guilty? I inserted the question mark to indicate there can be an ambiguity about "guilty" in criminal law that is rarely discussed in crime fiction.

All readers of crime fiction and, hopefully, the general public know that in jurisdictions following British legal principles such as the United Kingdom, Canada, United States, Australia and New Zealand a person cannot be found guilty of a crime unless the prosecution has proven to the court that the accused is guilty beyond reasonable doubt. It is an intentionally high standard.

Every accused, a person charged with a criminal offence, starts the legal process presumed to be innocent. Rumpole of the Bailey may have expressed it best in crime fiction by his oft repeated expression, usually after glasses of plonk at Pommeroy's, that the principle of the presumption of innocence is the golden thread at the heart of British justice.

The ambiguity of the question mark in the title to this post starts with the challenge faced by every defence counsel when there are strong facts presented in disclosure by the prosecutor that would show the accused is guilty of a crime but the accused advises the disclosure is inaccurate but can only provide weaker facts.

For Rumpole the situation is simple. He lives by the principle "never plead guilty".

Defence counsel will set out the odds are against being found not guilty at trial are grim in such circumstances but will not advise the entry of a guilty plea unless the accused is prepared to admit the facts necessary for a finding of guilty.

Adding to the mix may be a plea bargain offered by the prosecution that a guilty plea early in the process or to a lesser charge would mean a significantly lower sentence.

In The Guilty Plea author, Robert Rotenberg, a practising criminal lawyer in Toronto deals such a difficutl situation. As set out in my review:

    The evidence is so formidable that, for the first time in my crime 
    fiction reading, DiPaulo explores a guilty plea with his client. A
    plea to manslaughter and a few years in jail is an alternative to be
    considered when a 1st degree murder conviction means 25 years 
    in jail. DiPaulo treads a delicate ethical path in negotiations on a
    guilty plea when Samantha has not admitted killing her husband.
    To plead guilty requires an admission of guilt. I have had
    numerous clients agonizing as Samantha did over whether to
    plead guilty when they did not admit doing wrong.

You will often see judges in real life court rejecting pleas when an unrepresented accused tries to enter a plea of guilty while saying I am only pleading guilty to get it over with today.

Adding to the mix can be legal interpretations of the facts. Did the accused in receiving government benefits that it was determined for which the accused was not eligible commit civil fraud or criminal fraud or just make a mistake? The accused's actions were wrong but were they criminally wrong.

While prosecutors will disagree defence counsel often maintain accused are over charged in the number and seriousness of offences for a given set of facts. The accused is guilty of something but is it the charge or charges laid. A skilled defence counsel can ensure through negotiation with the prosecutor that a guilty plea to the appropriate charge with a reasonable sentence takes place.

Michael Connelly's lawyer, Mickey Haller, is one of the few fictional lawyers to regularly make deals for clients.

Dean Abernathy in Felony Murder by Joseph T. Klempner (1995) is another front line defence counsel who deals with the challenges of guilty pleas.

To add even more issues to the mix in Canada the police and Crown Prosecutor can for minor offences, if the accused is prepared to admit they are wrong though they do not plead guilty, refer the charge to alternative measures. Upon completion of such measures which may include mediation and an apology there is no finding or admission of guilt.

In America there is also the nolo contendere or no contest plea where an accused does not admit guilty directly but will receive a punishment for the charge for which the plea is entered.

I will not get into a discussion of people considering guilty pleas because they cannot afford trials.

Where crime fiction focuses on the clarity of guilty and not guilty in trials the real life world of criminal defence deals with a much subtler set of issues concerning guilty. I hope more writers of crime fiction take up the challenge of writing about negotiations over guilty pleas. I think they are just as fascinating as trials.

This post will be my entry for "G" in the Alphabet in Crime Fiction meme being hosted by Kerrie Smith at her blog, Mysteries in Paradise. Please drop over and see the other entries. Each week has interesting posts on the letter of the week.


  1. What a fascinating post, Bill! One of the things your post made me think of is what happens sometimes, at least in the US, when a client claims not to be guilty, but hasn't the means to pay for a private attorney. I've read several stories that suggest that in a lot of those cases, the public defence counsel advises the client to plead guilty and take a plea bargain rather than fight the charge. And a lot of people do take that option whether or not it's in their own best interests. You've raised some thorny and important legal and ethical issues here.

  2. Bill, thanks for a very educative post. I was particularly interested in your views about the guilty plea. I have often wondered if it is allowed in cases where a crime, say, rape or murder, or both, has been proved beyond doubt. Assuming it is, would the prosecution offer to lower the sentence when it can root for maximum punishment possible?

  3. Margot: Thanks for the comment. How much justice can you afford does play a role in plea decisions.

  4. Prashant: Thanks for the comment. Only the accused and his counsel can decide whether to admit guilt by entering a guilty plea. The stronger the facts against an accused the less room there is in sentencing discussions. If no agreement is possible the matter will proceed to argument on the proper sentence with defence and prosecution making their arguments on the appropriate punishment.

  5. Bill, thank you for the explanation. I, personally, have not heard of guilty pleas in the Indian criminal justice system though one often reads in newspapers about an undertrial turning approver in return for a lesser sentence. India follows the British justice system, too, but it abolished the jury system in 1960.

  6. I read a book a few years ago (cannot recall the title at all now, but it was published in the 1930s or 40s) in which the differences between French and British legal systems were discussed and the benefits of each were compared/contrasted. I did not know until then that in France the presumption is one of guilt and the lawyers much prove innocence, completely the opposite of British court system.

  7. This is a very interesting post about a complex subject. It convinces me I need to read more legal mysteries. Off the top of my head, all I have are Perry Mason books. Do they provide much actual legal information and background? I cannot remember.

    I will make an effort to get some books by the Canadian authors who write legal mysteries.

  8. Prashant: Thanks for commenting again. I am not familiar with the Indian judicial system. My former partner was from the Punjab but we actually did not talk much about the courts of India.

  9. John: Thanks for the comment. As with the Indian judicial system I do not know alot about the continental systems inspired by France. The concept of an investigating magistrate is far from English based systems of justice. They require a much different mindset for defence counsel. The recent Italian trial and appeals of the young American girl certainly appeared convoluted from afar.

  10. TracyK: Thanks for the comment. I cannot remember if I have actually read any Perry Mason books. The T.V. series with Raymond Burr dominates my thoughts of Mason. Burr was brilliant in the role.

    The T.V. series, as required by T.V., always had the dramatic ending usually with a witness admitting guilt and saving Mason's client. I can tell you in a lifetime of court appearances I have never seen a "Perry Mason" moment of confession by a witness!

    I hope you get to read some mysteries involving Canadian lawyers. There are several fine books.

  11. Erle Stanley Gardner was a lawyer and used the law, specifically California law, in his plots frequently. Most of the early books were more aligned with the pulp tradition and were action oriented, but his later books deal with legal trickery very much like what Melville Davisson Post was doing in his short stories featuring unconventional lawyer Randolph Mason who exploited ambiguities and loopholes in the law to win his cases. The Perry Mason TV series, depending on who was writing the episode, had a lot of interesting California law featured in the series. Most of what I've seen recently on MeTV with heavy legal issues in the stories dealt with business contracts and probate.

  12. Bill and John, Thanks to both of you for your feedback re Perry Mason. I can't remember much from when I read them originally, but I do want to read more of them. It will be interesting.

  13. John: Thanks for the information of Erle Stanley Gardner. You have made me want to read the books more than ever.

  14. TracyK: I agree John's comment really added to the post. I look forward to reading your reviews if you get a chance to read books featuring Perry Mason.