If You are Accused of Murder and Have No Money
People have the tendency to ostracize others of their own kind who have committed intolerable wrongs so that they can shield and console themselves with the belief that “a human being cannot commit such abomination.” However, we cannot on the one hand cut off and cast aside those we dislike, and on the other hand pride ourselves for the foundation of the Aryan civilization, which we claim is as old as history itself or even older.
For this reason, despite the fact that many believe “the devil needs no defense,” the presence of a lawyer in court and the defense of the accused is so crucial in certain crimes that the court cannot disregard the need for a defense attorney. Even if the accused is unable to retain an attorney, the court is obliged to engage one for them. And if the accused lacks the financial means to cover legal costs, the court is duty-bound to assign a public defender or a pro bono lawyer to their case. And this is only the beginning.
Mojtaba Farahbakhsh, an attorney and law professor at Allameh Tabataba’i University, says, “A society’s civilization is revealed in its attitude toward the uncivilized in that society. And those who have committed grave crimes can conceivably be placed in the ranks of the uncivilized. The judicial system’s attitude toward these people reflects the degree of collective rationality and leniency of the society. And the engagement of a public defender is an indicator of this collective rationality and leniency. The principles of fair legal processes require that in judicial proceedings both sides be equally armed, that the accused have the same power and volition as the prosecutor. If the prosecutor is a specialist in law, then the accused should also have a specialist in law at their side. If the prosecutor has someone gathering evidence, the accused should also have someone to gather evidence and help prove their claim. The function of an attorney is not to save a criminal from the claws of the law, but to help every wrong-doer receive a punishment befitting their crime, no more and no less.”
There are no statistics to illustrate the number of criminal cases nationwide that are assigned to public defenders each year and the percentage of these cases that result in death sentences, life sentences, long-term imprisonment, lighter sentences, or acquittals. It is, however, clear that these cases are not few. “In 2016, the number of public defender cases in Tehran alone exceeded one thousand, and these are only the ones referred to the Iranian Bar Association. In many cases, courts and public prosecutors’ offices directly choose a public defender for the accused, and the data on these cases is not provided to the Bar Association.”
Imagine that following an incident, you have been arrested as a suspect in a homicide case. According to the law, the unit making the arrest can only detain you for 24 hours without an arraignment. And, based on Amendment 2 of Article 190 of the Criminal Justice Act, a defense attorney must be present at an arraignment by a magistrate. In other words, if you don’t have the financial means to retain an attorney, the magistrate must assign a public defender to your case before conducting the arraignment. Article 5 of the Criminal Justice Act enacted in 2015 states, “The accused must expeditiously be informed of the subject and reason for the filed grievance and be given access to an attorney and other legal defenses aforementioned in this Act.”
But in reality, this usually does not happen. You could be held under arrest for hours without seeing a magistrate, without being informed of your legal rights, and without an attorney. You might even be arraigned without the benefit of legal representation. Ataollah Roudgar, who practiced law for twenty years and served for five years as an examining magistrate of homicide cases in Tehran, says, “According to the Criminal Justice Act, investigations of crimes punishable by death or a life sentence must take place with the attorney of the accused present. Meaning that as soon as someone is placed under investigation, they must be represented by a lawyer, and no arraignment can take place without one. However, no regulatory procedure has been stipulated for this statute.” Mr. Roudgar further explains that to assign a public defender to a case, there need to be certain correspondences between the Department of Justice and the Bar Association which is onerous and time consuming. Yet, even though the investigation takes priority, the accused cannot be held without being arraigned, nor can they be unconditionally released. “To circumvent this problem,” Mr. Roudgar adds, “when arraigning an accused with no legal representation, judges procedurally also issue a writ of injunction against the accused. In practice, when there is a conflict between the rights of the society, the rights of the victim, and the rights of the accused, the process of justice favors the rights of the society and the victim.”
The police, however, contend that the new Criminal Justice Act is to a great extent to the advantage of the accused. Yet, experience has proven that ratification of a law, on its own, is not enough. Law enforcement officers interviewed by ISNA news agency explain that it takes years for a ratified law to become fully entrenched in the system and practiced by the police force. Therefore, even your awareness and knowledge of these laws could be of little use to you in the initial investigation process. Consider that as the accused, it is likely that you would be unaware of your right to request to see an attorney and a doctor, and to contact your family. Naturally, if you don’t demand your rights, chances are that you will not benefit from them.
What comes after the arraignment? You will be placed under the authority of the Police Criminal Investigation Department for inquest and enquiries, which could be a lengthy process. Officers who spoke with ISNA commented that at this stage, there is usually no sign of a defense lawyer, be it a public defender or a retained attorney. Of course, the police attest that lawyers can go to the Criminal Investigation Department at the behest of the magistrate and conduct any work they have been assigned to, including reviewing case files and meeting with you.
If you have paid an attorney to represent you, they can use all their resources to defend you and gain your approval as their client. However, if you have no money, you will be lucky if you are arrested in a large city where quick access to legal representation is “conceivable,” and lucky if you have not been arrested at night, over the weekend, or during holidays, and lucky if the magistrate has assigned a public defender to your case for the arraignment. But from that point on, how often that public defender meets with you, assists you in interrogations, informs you of your rights, and follows up on your case, depends on that attorney’s ethics and integrity, and, of course, the magistrate’s permission.
Officers of the Criminal Investigation Department explain that at this stage, even though lawyers are by no means barred from the department, they are not allowed to hinder or interfere with the investigation process. In other words, if there is any concern that your lawyer might leak information or commit acts that hamper the investigation, they will not be welcomed at the department.
A detective who wishes to remain anonymous, explains that at this juncture, an attorney’s intervention could cause difficulties for the investigators. “The lawyer can teach his client to remain silent, or to make statements in a manner that complicates the investigation process. The police cannot allow investigations to encounter problems because of these issues.”
Attorneys disagree with this reasoning. “The basis of the claim that a lawyer’s presence causes the accused to learn not to cooperate with the police is meaningless,” Mr. Yarahmadi argues. “In fact, it is the role of the attorney to explain to the accused how to behave and what to say and not say in the course of the investigation. This cannot be used as an excuse to prevent the presence of an attorney, which would be against the principles of law and citizens’ rights. The role of the attorney is to inform the client of their legal rights, and the responsibility of the investigators and the police is to use law enforcement means to conduct discovery and gather evidence. The accused has the right to remain silent and not respond to investigators’ questions.”
In any case, not all magistrates, judges, investigators, and police believe that a “confession” should be the final stage of a criminal investigation. In many cases, the accused’s confession is obtained prior to an investigation and evidence-gathering, and prior to the presence of a defense attorney.
Experienced investigators believe that at this stage, the police need not worry much about the presence of a lawyer and a disruption in the course of an investigation, because lawyers do not often involve themselves with police matters and generally become fully engaged in pursuing a case once it reaches the public prosecutor’s office. Furthermore, a magistrate can deny an attorney access to a case file and even meetings with the accused by invoking the article of law that permits “preliminary investigations of a case to remain confidential”.
A public defender speaking with ISNA at the Bar Association refers to one of his cases as an example and says that a murder suspect has spent the past six months in solitary confinement without being allowed any visitors, and the magistrate on the case will not even permit the accused to meet with an attorney.
There are conflicting opinions regarding the maximum length of time you can be involved in a criminal investigation process without seeing your attorney. According to the law, this period cannot exceed 24 hours. However, judiciary procedure states that the absence of a public defender should not hinder an ongoing investigation. Judicial authorities say that from the time of your arrest until the time you finally meet with an attorney, there might be an interval of three to five days or even a week. Several of the public defenders interviewed by ISNA say that being assigned to a case could take place a week to ten days after the accused has been placed under arrest. Yet, the police suggest that this period might be delayed by more than a month.
If there is no attorney present to inform you of your basic rights—for instance, to explain that you have the right to remain silent and you cannot be coerced into answering any questions—then of what use would a public defender be to you?
During the investigation of the murder you have been accused of, you may offer explanations in your defense that might carry little weight with the police or the magistrate. One of the responsibilities of an attorney would be to try to gather evidence to prove your claims, and thereby your innocence. For instance, if you claim that you were drunk, or that at the time the crime took place you were elsewhere, your attorney would seek witnesses and evidence to prove your assertion.
“The legal process is not simple,” Mr. Farahbakhsh explains. “It usually starts with police investigations and continues on to interrogation, a hearing, a trial, and ends with a sentence being issued and implemented. The accused needs to have someone at their side throughout this process to explain what will take place at each stage and what actions the police, the magistrate, etc., will engage in. Furthermore, the language of the law is not simple. The accused needs someone to explain the definition of legal terms so that they can defend them self. In the case of grave criminal offenses, the society with its inherent characteristics stands against an impoverished individual. Someone must be there to explain to the accused that although the society has rights and has suffered a wrongdoing, you, too, have rights and your culpability should not be dealt with unfairly.”
Mr. Roudgar believes that the presence of a defense attorney is in fact helpful to the investigation and handling of a criminal case. “Not all judges and magistrates are alike, but I think most of them prefer attorneys to be present in the processing of a case, because investigations proceed faster and with fewer errors, and attorneys can explain to the accused what they should say, which avoids misrepresentations. Also, if anything remains overlooked by the court, the attorney would bring it to the judge’s attention.”
Despite this, Mr. Roudgar says that based on his experience, an attorney is not always available and overseeing a case from start to finish. And even when one is present, the extent to which they will follow up on a case depends purely on their conscience. And, there are judges who do not really welcome the involvement of an attorney.
As an accused with a public defender, your next concern will be whether the attorney has enough motivation to effectively pursue your case. While the law consigns the responsibility of various tasks in defense of an accused to the attorney, the practice of law is in general a relative matter. A judge or magistrate can discharge and replace a public defender who, for instance, fails to appear in court, but they cannot decide whether your public defender has dedicated enough effort to your defense or whether their representation has been acceptable or not.
“The practice of law is a relative endeavor,” Mr. Roudgar explains. “Lawyers differ based on their knowledge, capability, and experience. A judge or magistrate will recognize the weaknesses of a defense, but they cannot tell an attorney that he must properly defend his client. The rights of the victim are also of concern. Facing someone whose rights have been violated, a judge cannot tell a defense attorney to better represent the accused.”
However, Mr. Yarahmadi says, “Although attorneys differ with respect to the time they dedicate to reading and researching case files, it is not as though they will not engage all their competencies when working on public defense cases. If an attorney is capable and well suited to the case assigned to him, he will write a statement of defense with the same knowledge he would use to write a statement of defense for a case he is defending as a private attorney. No one can claim that a six-page statement is necessarily any better than a two-page statement. Attorneys differ and they choose different defense strategies. This does not mean that they will devote less effort to a public defense case.”
So far, it is clear that in addition to the difficulty of retaining an attorney, which can in turn delay the assignment of a public defender to your case, as the accused, you do not have the benefit of choice and must consent to the lawyer assigned to you. These issues could give you the impression that, in your case, justice has not been served, and you will likely become skeptical of the judicial system as a whole.
“Clearly, the attitude of the accused toward a public defender and a private attorney is different,” says Morteza Yavari, an attorney who has served as a public defender on important criminal cases. “After all, a public defender is an imposed defender, whereas if the accused could choose their own attorney, they would research and select someone with greater expertise in their particular case. It is even possible that their public defender is unskilled, but the accused has no recourse.”
In this regard, Mr. Farahbakhsh says, “A public defender is in fact a compulsory attorney. One of the problems with the current trend is that if a lawyer chooses not to accept a public defense case, he has committed a violation. In reality, in a public defense case, legal representation is imposed on the attorney as well as on the accused, and this affects the quality of the attorney’s work.”
It should also be taken into consideration that the majority of the people interviewed for this report agree that the caliber of public defense attorneys is different from that of private practice attorneys. Even though the law obliges the judiciary system to compensate public defenders for their legal services, no budget has in fact been allocated to this since 2015. Therefore, public defense is not only financially disadvantageous for attorneys, it actually imposes a cost on them. They have to cover their general expenditures, spend time that they could otherwise earn an income for on a case that is not financially rewarding, and if they choose to appeal an initial ruling, they will often have to pay the costs associated with it. Certainly, for many attorneys, ethics and conscience take priority, and despite all these problems, they defend the accused to the best of their ability and perhaps even more sympathetically than private lawyers. But as in all other professional fields, not all attorneys are alike.
“It is normal for a public defender to dedicate less time to a case than a private attorney would,” Morteza Yavari comments. “Because sitting here, I, too, have certain expenses, and the source of funding for these expenses is either consulting or legal fees. Obviously, legal fees affect an attorney’s incentive to pursue a case.”
Another concern is that the process of engaging a public defender for a case is not always done by the Bar Association. Sometimes, courts and prosecutor’s offices undertake measures without the knowledge of the Bar Association and assign an attorney as a public defender to a case, which is problematic for you as the accused and for the attorney who is to defend you.
“The fact that the Bar Association is not the body appointing a public defender is at times in violation of the rights of the accused,” Mr. Yarahmadi explains. “[Such an] appointment by the prosecutor’s office results either in attorneys taking on more public defense cases than is permitted per year, or in attorneys without the relevant expertise being assigned to cases unsuited to them. For instance, if an attorney were to have more than ten public defense cases, it would affect his work and livelihood, and if an attorney not specialized in homicide cases were enlisted to represent someone accused of murder, it would result in that defense not being handled properly, which ultimately bring the principles of fair judgment under question.”
At this point, your case is facing several difficulties. In addition to the delay in having a public defender assigned to your case, you having no say in the matter, the risk that your attorney may not be experienced in cases such as yours, and the lack of financial compensation for legal services, your case may be jeopardized by yet another predicament. And that is the media taking an interest in your case.
There is a difference of opinion among scholars of law, attorneys, and judiciary and police authorities on whether the media’s interest in a criminal case is beneficial to the investigation and the vindication of the rights of individuals and society or not. Some believe that the media’s magnifying glass can prevent the abuse of the rights of the accused and the victim. Others believe that the media’s involvement sensationalizes a case and increases public pressure on the judiciary system for a speedy resolution to the case, which increases the possibility of errors and oversights.
Public defenders come under greater pressure when a case ends up being covered by the press. People with pure Aryan blood coursing through their veins who believe that the “four thousand-year history of punishment has proven that retribution cannot control crime” are far fewer in number than those who are inclined to seek personal and societal revenge on someone accused of a tragic murder. Therefore, the public defender on whom your case has been imposed must now tolerate the pressure of the public who consider him “the devil’s defense attorney” because of the heinous nature of the crime and question the core foundation of the need for an attorney to defend you.
Mr. Farahbakhsh, the public defender for Amir Hossein Pourja’far, who murdered a young girl named Setayesh Ghoreishi, says, “In our society, public opinion is extremely pro-punishment, and because the public feels guilty and responsible when faced with social dissonance, it wants to ease its own conscience by exacting horrific punishments.”
The result? During the trial of the “Night Bat”—the nickname given to a serial murderer of women in Tehran in the 1990s—the public defender of the accused asked that the court sentence the Night Bat to death by execution as an animal! A request that might be acceptable coming from an incensed plaintiff, but surely unacceptable when uttered by a defense attorney who must seek fair judgement for a crime.
It may seem that the punishment for many obvious crimes is clear-cut and the only responsibility of the police and the judicial system is to arrest the guilty and leave them in the hands of the law. However, when a sentence is irreversible, according to the tents of Islamic jurisprudence that calls for caution in capital punishment, even the utmost degree of prudence and vigilance could be too little.
The noose does not care whose neck it breaks, or whether the requirement of premeditation in a crime has been proven or not. It is our collective conscience that must accept greater responsibility in this regard. None of us is born a criminal. And if it is a matter of punishment, then all of us must be punished to the extent we deserve. Who can claim they have never committed a wrong? Would that person please cast the first stone.