The ethical of the lawyers was inquired, because they accept to defend persons accused of serious crimes, thus contributing to impunity. The topic is not new. It has already happened with regard to the lawyers that acted in the defense of supposed counter-revolutionaries of the French Revolution and then in the episode of the captain Dreifus, in France in the end of XIX century, and in Israel when John Demjuk was judged, accused of very serious crimes practiced in the Concentration Camp of Treblinka. In Brazil, the most recent and emblematic case took place with the beloved Evaristo de Morais Filho, who defended the then president Collor.
When criminalists are not confused with the own accused, there an irresistible calling of the public (or published) opinion to pre-judge the cases. Then it is formed an explosive set: the accused, even before being judged is already considered a dangerous felon and his lawyer is not but an abject who accepted the case of the offender for money. However, what happens is that, rushed judgments, as history teaches us, are not the best ones, only remind Jesus and Barabbas. Then, without having knowledge on the evidence gathered in the case, is poorly judged. Irrespective of that, at least in a State Ruled by Law, any accused, even guilty, has the right to defense; and, of course, the best defense. The scandal, according to Dershowitz, is not in that rich people are extraordinarily defended, but when poor people are not. When criticizing Márcio Thomaz Bastos for having accepted the case of Carlinhos Cachoeira, the pre-judgment and prejudice are wide open, making statements like “it is not good for a former Minister of Justice to defend a gangster”.
Economists that were members of the Ministry of Finance keep working with economy and physicians that were members of the Ministry of Health remain providing clinical consultant. As to criminalists… In any case, nothing more dangerous to Democracy and to the State Ruled by Law that vilification to the right of defense, based on a diffuse eagerness to the conviction, imprisonment, a show that satisfy the innermost desires of revenge. To ensure the right of defense is assure penalty rationality. It is to make the most important limit to arbitration worth. Not by coincidence such right is provided in the Constitution, Covenant of San Jose from Costa Rica, in the Universal Declaration on Human Rights and in the most different treaties and conventions. It is a human right to counteract the accusation arguments, appeals and legal provisions that benefit accused.
Wishing to impede the use of good defenses in face of overwhelming anxiety for conviction, besides illegal, is coward and immoral. When society, State, media turn against accused, there is only the defense lawyer left, oftentimes the last and only to hear, listen to his version, and take to Court for a fair judgment. As Carnelutti said “the essence, difficult, nobility of advocacy is: sit on the last step of the ladder, next to the accused, when everybody else points to”. Taking from him even this, until this last and most often lonely support, is to establish the lynching. Otherwise, a criminalist lawyer cannot – and must not – perform any type of moral filter regarding his clients. The code of ethics of the advocacy expressly so determines, when stating that “is right and duty of the lawyer to undertake the criminal defense, without considering his own opinion on the guilty of the accused”. Besides, if it were not like this, an abominable offender would be released, because without defense, there is no judgment. Criminalist, oftentimes, stands against the majority, in the single duty of defending his client. And as Gramsci would say, a real countervailing.
This is his task, duty, role. Those who make the most forceful criticisms against the defense should remember that in a totalitarian state, the first concealed right is the defense. Without such right, any brutality is possible, because practiced out of sight, without counterpoint or confrontation. The assumption of the democracy is the dialog, dialectics, contrast of arguments without any censorship or duress. Silencing the defense, criticizing those who exercise it does not reduce impunity, does not make the country a more honest and safer place. Only moves away a limit to the arbitration, violence, punitive power. And the suppression of limits attracts the abuse. Always timely Rui Barbosa´s memory, to whom “There is no other mean to impair the arbitration, but adding defined and unequivocal outlines to the condition that limits it”. And if we want to impede the arbitration, the excess and abuse, it is essential for us to ensure the right of defense.
