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opinion

The Luka Magnotta trial has begun. It appears from the unproven allegations to be a case of uncommon evil: one that jars us out of our moral desensitization induced by the steady news stream of everyday thuggery, and evokes a collective cry of anguish.

With that wail comes the inevitable angry question: How can anyone possibly defend the alleged perpetrator? The usual answers are, "because that is the system we have", "everyone needs a fair trial", and "tough job but someone's gotta do it." However these pat answers uniformly fail to convince, because they obscure more than they reveal. To truly understand the importance of a vigorous defence in every criminal case, including the most terrible ones, I say think baseball.

Some might balk (pun intended) at the idea of a frivolous baseball metaphor deployed to make a serious point about our justice system. But they do not have history on their side. For better or worse, our legal system has for centuries embodied the "sporting theory of justice," whereby two hired professional adversaries – courtroom lawyers at the top of their game – clash in stylized verbal competition. And the whole match is presided over, and ultimately decided by, an impartial referee – either a judge or a judge and jury. So concepts from the cultural construct of sport are very often helpful aids to understanding the mysteries of our court system because sports and our justice system have so much in common.

Imagine the prosecutor as the pitcher, the defence lawyer as the batter. A pitcher succeeds only by getting the ball past the determined eye and determined bat of his or her adversary. And the batter succeeds by stopping the pitch in its path and knocking it past the fielders. Pitcher and batter are locked in combat, each determined to better the other by doing their very best.

What flows from a determined, talented pitcher facing down an equally determined, talented batter? Whether the at-bat ends in a hit or an out, the result is excellence. The talent of each opposing titan forces the other to do their very best or fail. And so it is inside our justice system. Prosecutions of alleged criminals are better for having determined opposition from defence lawyers throughout.

Let's put the same idea another way. A good pitcher facing a mediocre batter might get a strikeout without using his best pitch. But when a serious crime has occurred, causing gut-wrenching victimization, will we be satisfied if the prosecutors who carry the case forward cut corners and do a lazy, half-baked job just because a bumbling defence lawyer will let them get away with it? Of course not. In our justice system, like everywhere else, laziness and sloppiness are recipes for bad outcomes. Nothing motivates pitchers to bring their A-game like good batters. And nothing motivates prosecutors to do their best like determined, talented defence lawyers.

But won't talented defence lawyers send terrible criminals back out onto the streets in droves, and undermine our justice system? No, because even the best batters fail seven out of 10 times. Similarly, in our justice system, the overall conviction rate is well above 90 per cent. So a vigorous defence of every case does not prevent us holding the guilty accountable in very large numbers. But a vigorous defence does prevent dubious convictions in sloppy prosecutions.

In the unusually horrific cases, some might still resent lawyers defending these cases as vigorously as all the others. But in baseball, is it ever acceptable for a batter to stop trying to hit every pitch? Of course not. Why? Because we never know if a pitch can or cannot be hit until it is thrown and the batter reacts. The same is true of criminal prosecutions. We never know in advance which ones will succeed or fail. Therefore batters and pitchers, prosecutors and defence lawyers, must always be fully engaged in achieving success because this alone will keep their adversary fully engaged. Through this committed adversarial clash of opposing talent – on the diamond and in the courthouse – an equilibrium of excellence is achieved. And just as baseball games are built one pitch at a time, justice systems are built one case at a time. So every single one matters.

A justice system like ours, built as it is on a sporting theory of justice, can maintain its own equilibrium of excellence only if the lawyers on both sides bring focus and determination to every case like it's a 9th inning tie in the World Series. So the next time you are tempted to disparage a lawyer vigorously defending a truly awful case, think baseball and be thankful instead for what is really going on, which is the pursuit of excellence in justice outcomes.

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