Skip to main content Accessibility help
  • Print publication year: 2014
  • Online publication date: October 2014

7 - Criminal defense and the problem of client selection


How can you represent that person?

Kenneth Murray, a criminal defense attorney in a small town north of Toronto, Ontario, was retained by Paul Bernardo to defend him against charges of kidnapping, rape, and murder. Bernardo had been arrested in connection with several rapes that had occurred elsewhere in Ontario, and the police suspected him of involvement in the murder of two teenaged girls who had disappeared and whose bodies had been found with signs of sexual abuse. The police searched Bernardo’s house and found no incriminating evidence. Subsequently, Bernardo told his lawyer, Murray, that there were cameras placed in the bedroom of his house and that he and his wife had not only tortured, raped, and murdered the two girls, but also had videotaped the acts. (Bernardo’s wife was represented by separate lawyers. Bernardo wanted his lawyer to see the tapes in order to establish his defense that it was his wife, not Bernardo, who had killed the girls.) Murray went to Bernardo’s house and, following Bernardo’s instructions, found the videotapes hidden in a light fixture. Murray brought the tapes back to his office and viewed them. They indeed showed several hours of horrific acts by Bernardo and his wife, including the wife administering a dose of toxic gas to her own sister, which subsequently resulted in her sister’s death.

Related content

Powered by UNSILO
Cooper, Q.C. Austin, “The Ken Murray Case: Defence Counsel’s Dilemma,” Criminal Law Quarterly 47: 41 (2009)
Clemmer, Christopher D., “Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel’s Conflicting Obligations to Clients and the Court,” Osgoode Hall Review of Law and Policy 1: 137–97 (2008)
Woolley, Alice, Understanding Lawyers’ Ethics in Canada (Markham, Ont.: LexisNexis 2011), p. 46–52
R v. Ulcay & Toygun [2007]
Ross, Stan, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Sydney: Butterworths 1995), pp. 143–54
Webb, Duncan, Ethics: Professional Responsibility and the Lawyer (Wellington: Butterworths 2000), pp. 153–61
Flood, John A., Barristers’ Clerks: The Law’s Middlemen (Manchester: Manchester University Press 1983)
Rondel v. Worsley [1969]
R. v. Paine (1792)
Dare, Tim, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role [Farnham, Surrey: Ashgate 2009], p. 10
Fried, Charles, Op-Ed, “Mr. Stimson and the American Way,” Wall Street Journal (January 16, 2007)
Woolley, Alice et al., Lawyers’ Ethics and Professional Regulation (Markham, Ont.: LexisNexis 2008), pp. 383–94
Smith, Abbe and Freedman, Monroe, How Can You Represent Those People? (New York: Palgrave MacMillan 2013)
Dershowitz, Alan M., Reasonable Doubts: The Criminal Justice System and the O. J. Simpson Case (New York: Touchstone 1997)
Kunen, James S., “How Can You Defend Those People?”: The Making of a Criminal Lawyer (New York: Random House 1983)
Wishman, Seymour, Confessions of a Criminal Lawyer (New York: Times Books 1981)
Smith, Abbe, “Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things,” Hofstra Law Review 28: 925–61 (2000)
Ogletree, Jr. Charles J., “Beyond Justifications: Seeking Motivations to Sustain Public Defenders,” Harvard Law Review 106: 1239–94 (1993)
Tigar, Michael E., “Defending,” Texas Law Review 74: 101–110 (1995)
Babcock, Barbara, “Defending the Guilty,” Cleveland State Law Review 32: 175–87 (1983)
Mitchell, John B., “The Ethics of the Criminal Defense Attorney – New Answers to Old Questions,” Stanford Law Review 32: 293–337 (1980)
Dworkin, Ronald, “Rights as Trumps,” in Waldron, Jeremy, ed., Theories of Rights (Oxford: Oxford University Press 1994)
Luban, David, “Lawyers as Upholders of Human Dignity (When They’re Not Busy Assaulting It),” in Legal Ethics and Human Dignity (Cambridge: Cambridge University Press 2007), pp. 71–72
Hazard, Jr. Geoffrey C., “Quis Custodiet Ipsos Custodes?,” Yale Law Journal 95: 1523–35 (1986) (book review), p. 1529
Harr, Jonathan, A Civil Action (New York: Random House 1995), p. 340
Joseph, Lawrence, Lawyerland: What Lawyers Talk About when They Talk about Law (New York: Farrar, Straus & Giroux 1997), p. 127
Hazard, Geoffrey C. and Remus, Dana A., “Advocacy Revalued,” University of Pennsylvania Law Review 159: 751–81 (2011)
Gilovich, Thomas and Griffin, Dale W., “Judgment and Decision Making,” in Gilovich, Thomas, Keltner, Dacher, and Nisbett, Richard E., eds., in Social Psychology (New York: Norton, 2d edn., 2011), pp. 246–58
Tigar, Michael E., “Defending,” Texas Law Review 74: 101–110 (1995), p. 104
State v. McDowell, 681 N.W.2d 500 (Wis. 2004)
Clermont, Kevin M., Standards of Decision in Law (Durham, N.C.: Carolina Academic Press 2013), pp. 29–30
Cochran, Jr. Johnnie L., “How Can You Defend Those People?,” Loyola of Los Angeles Law Review 30: 39–43 (1996), p. 42
Burnett, D. Graham, A Trial by Jury (New York: Knopf 2001), pp. 160–61
Cole, David, No Equal Justice: Race and Class in the American Criminal Justice System (New York: New Press 1999)
Fried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” Yale Law Journal 85: 1060–89 (1976), p. 1070
Shaffer, Thomas L., On Being a Christian and a Lawyer (Provo, Utah: Brigham Young University Press 1981), pp. 75–76
Tigar, Michael E., “Setting the Record Straight on the Defense of John Demjanjuk,” Legal Times (Sept. 6, 1993)
Freedman, Monroe and Smith, Abbe, Understanding Lawyers’ Ethics (New Providence, N.J.: LexisNexis, 4th edn., 2010), Appendix A, p. 371
Freedman, Monroe H., “The Lawyer’s Moral Obligation of Justification,” Texas Law Review 74: 111–118 (1995)
Harden, Blaine and Torry, Saundra, “N.Y. Law Firm to Advise Swiss Bank Accused of Laundering Nazi Loot,” Washington Post (Feb. 28, 1997), p. A3
In re Holocaust Victims Assets Litigation, 319 F.Supp. 2d 301, 303 (E.D.N.Y. 2004)
Parker, Christine and Evans, Adrian, “Case Study 2.1: The Nazi Gold,” in Inside Lawyers’ Ethics (Cambridge: Cambridge University Press 2007), pp. 37–39
Bazyler, Michael J., “Gray Zones of Holocaust Restitution: American Justice and Holocaust Morality,” in Petropoulos, Jonathan and Roth, John K. eds., Gray Zones: Ambiguity and Compromise in the Holocaust and Its Aftermath (New York: Berghan Books 2005), p. 339
Goldman, John J., “Venerable Firm in Spotlight for Holocaust Assets Case Role,” Los Angeles Times (Apr. 3, 1997)
In re Holocaust Victims Assets Litigation, 319 F.Supp. 2d 301 (E.D.N.Y. 2004)
Bok, Sissela, Lying: Moral Choice in Public and Private Life (New York: Pantheon Books 1978), p. 13
Mitchell, John B., “Reasonable Doubts Are Where You Find Them,” Georgetown Journal of Legal Ethics 1: 339–61 (1987)
Amsterdam, Anthony and Bruner, Jerome, Minding the Law (Cambridge, Mass.: Harvard University Press 2000), p. 111–42
Pennington, Nancy and Hastie, Reid, “A Cognitive Theory of Juror Decision Making: The Story Model,” Cardozo Law Review 13: 519–57 (1991)
White, James Boyd, “Making Sense of What We Do: The Criminal Law as a System of Meaning,” in Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press 1985), pp. 207–09
Freedman, Monroe H., Lawyers’ Ethics in an Adversary System (Indianapolis: Bobbs-Merrill 1975), pp. 43–45
Smith, Abbe. See Understanding Lawyers’ Ethics (New Providence, N.J.: LexisNexis, 4th edn., 2010) § 7.12, pp. 207–08
Luban, David, Lawyers and Justice (Princeton: Princeton University Press 1988), p. 151
Kruse, Katherine R., “The Human Dignity of Clients,” Cornell Law Review 93: 1343–64 (2008), p. 1346