Why are so many Maltese lawyers so… useless?

As I sit down to write this article, my Facebook page is under siege from a variety of quarters - including some pretty unlikely ones (which to my mind means there is hope for humanity yet) -urging me to sign a petition calling for the immediate release of Daniel Holmes from Kordin prison.

As it happens I have already signed the petition, and like my online besiegers I urge others who care about such trifles as 'justice' (or the lack thereof) to do the same.

But first, a bit of background. Holmes is currently serving an 11-year sentence, which came complete with a fine of €23,000 euros, after two marijuana plants were discovered on the balcony of his Gozo apartment a few years ago.

I don't intend to use the rest of this article to delve into the specifics of this case, because... well, let's just say I have been there often enough in the past. Among the very first articles I ever wrote was entitled 'Of Mice and Marijuana', and it dealt specifically with why imprisoning marijuana users is the sort of thing one associates more with Khmer Rouge Cambodia, than with a 21st democracy that is now an EU Member State to boot.

But like I said, this is all territory I have been over literally dozens of times in the past; and in any case I have written another article to this effect in another part of this fine newspaper today.

There is, however, one small aspect of the Holmes case that does merit separate analysis. In all the years I have been writing about legal issues in this country, I have never come across a single allusion, of any kind whatsoever, to what must be the single most unique and quite frankly illogical aspect of our country's entire legal and juridical scenario... an anomaly which extends far beyond the confines of individual drug-related cases, and which has even raised eyebrows on the other side of the Atlantic (as I intend to illustrate soon).

By now you will have surely read somewhere - possibly in today's editorial, on page 27 - that if Holmes was handed down such an improbable sentence to begin with, it was mainly because Malta's drug legislation allows no actual discretion to the magistrate in cases involving cultivation and/or manufacturing of illicit substances. (Note: the same used to apply also to importation of drugs, but following a similar outcry in the 1990s this was reversed... which sort of makes you wonder why the authorities are taking so bloody long to realise an identical mistake all these years later.)

In any case: what seems to have escaped most people's notice is that, in order to be sentenced for a crime, you must first be convicted of having committed it. Important little detail, that... and it brings me directly to the really shocking truth that simmers quietly beneath the surface of this particular case, and many others beside.

With hindsight, Holmes's conviction now appears to have been inevitable from day one: not because he was, in fact, guilty... but because, on the advice of his own lawyer, he had entered a guilty plea at first instance.

A few questions immediately spring to mind. Did Daniel Holmes fully understand the implications of entering a guilty plea for a marijuana cultivation charge in a Maltese court of law? Was he informed by his lawyer that, in so doing, he would technically be leaving the presiding magistrate with absolutely no option whatsoever but to inflict precisely such a severe sentence - which incidentally constitutes the minimum for this crime (the maximum being 25 years)?

I somehow doubt it, because otherwise... well, he would have willingly and knowingly consigned himself to 11 years in prison, and as such would hardly be in any position to complain about it now.

This leaves us with the alternative scenario: i.e., that he did NOT know the consequences of his own plea, and was never informed as much until it was already far, far too late.

In turn this means at least three things, all of which reflect very poorly indeed on Malta's entire legal system.

1) Despite advising his client to plead guilty, the lawyer in this case must have also omitted to explain to Daniel Holmes what this plea would actually entail - in flagrant breach of the most basic client-lawyer obligations, and for reasons that have never been made clear. (Note: Holmes would later change lawyer, presumably after realising how seriously he had been shafted).

2) If the idea was to appeal for clemency from the magistrate... well, any lawyer who knows his profession (or, for that matter, the Criminal Code) will also know that this simply couldn't have worked in practice. The law does not allow for clemency in such cases. So Holmes's lawyer was either ignorant of this fact - in which case, what the heck is he even doing practising law? - or he was perfectly aware that clemency was all along impossible, and yet deliberately gave his client the wrong advice that landed him in jail for 11 years.

3) It is not just the lawyer who is at fault here. The presiding magistrate also failed to inform the defendant of the consequences of his plea at the time when it was entered. Still less was Holmes given a chance to revise his plea (which is what would almost certainly have happened in most serious legal jurisdictions in the world).

Taken together, these three considerations amount to what can only be described as a case of legal entrapment. Daniel Holmes was cheated by a legal system that has time and again proven to be indifferent to the plight of its own victims.

OK. Now for a couple of minor clarifications just to iron out the ghost of uncertainty in the above claims. That Daniel Holmes was advised to plead guilty by his lawyer, even though he clearly didn't understand the implications of his plea, is a FACT; and I know this because I made it my business to find out.

However, I have been unable to verify whether the law-courts in Malta actually have an obligation to inform defendants of the consequence of their initial plea. So I invite legal experts - of which we have around a million in this country anyway - to step forward now, or forever hold their peace.

Meanwhile, for the rest of this article I will stick to the main anomaly underpinning this case. Holmes is not only victim of a monstrously unfair legal system which looks, feels, smells and tastes exactly like a hangover from the Mintoffian days of 'imprison first, ask questions later'... he is also the victim of a situation whereby lawyers (not all, obviously, but a sizeable chunk of them) simply feel they have no real obligations towards their clients at all: especially if these happen to be foreigners, and even more so (though this does not apply to Holmes) foreigners who are on legal aid.

Nor is it just foreigners. I know of literally dozens of instances where clients (mostly in criminal cases) have been advised to enter guilty pleas by their own lawyers, for no apparent reason at all. In fact, here is a little experiment you can all try for yourselves. Access the Google search engine, and type the words 'Malta, plead, guilty' into the search field. See what comes up. A cursory glance at the results on my screen suggests that probably one in three criminal cases start out with a guilty plea... and THAT, I can assure you, would simply not happen anywhere else in the judicially developed world.

In fact, it has always perplexed me how everyone in this country seems to just accept such a sordid state of affairs without so much as batting an eyelid. To illustrate: some of you may remember the case of Ali Rezaq, the Palestinian terrorist who survived the storming of EgyptAir 648 on the Luqa runway in 1986. You may also recall how Rezaq benefited from multiple amnesties, and was released very early into his prison term - a fact which pissed off Uncle Sam no end, let me tell you - and how he was later re-arrested and tried separately in USA for hijacking (note: he had been convicted in Malta for murder, as there was no local anti-terrorism legislation back then).

Well, his American defence lawyer was interviewed on PBS at the time of his re-arrest, and I remember clear as daylight how he had expressed amazement at the fact that Rezaq had been advised to enter a guilty plea in Malta. That, the American lawyer added, was something that just never happened in the States at all (or happened so very rarely that the judge would normally recommend a psychological examination of the defendant).

In Malta? Things seem to work the clean other way round. It is those criminal lawyers who actually do make a determined effort to defend their clients tooth and nail that are looked upon as being vaguely 'odd' by their colleagues. Why bother putting up a fight in court, they imply with their looks... when all you have to say is: "My client pleads guilty, your honour," and, hey presto! Case closed, and we can all drift off to Café Premier for a quick cappuccino?

Right: before proceeding (disclaimer alert!) I feel it's only fair to point out that there are some criminal lawyers who take their job very seriously indeed, and who do strive to provide their clients with the best possible defence (I won't mention names because the point of this article is not to point fingers at individuals, but rather at systemic problems, etc.).

BUT... these seem to be a small minority. For reasons which I can only surmise, most Maltese criminal lawyers are actually rather crap at their job. Not only do they give the impression (like Holmes's attorney) that they are entirely unfamiliar with the law; but they are often not even remotely interested in the fate of their clients, and are sometimes far more concerned with currying favour with the presiding magistrate (and, by extension, the establishment that the same presiding magistrate generally represents) than in actually securing an acquittal.

Meanwhile I admit that all this sounds like a gross generalisation - and perhaps in part it is. But I have good reason to generalise. At various points in my career I have met and talked to people serving prison sentences (and their families), or people who are/were awaiting trial in prison, or people who have already been there and done that, and are now back out after having paid their dues to society, etc.

When talking to these people, the sheer consistency with which such complaints surface cannot be put down to mere coincidence alone. Many people in the above situation do feel horribly let down by their lawyers and by the system in general. I don't blame them, because even in my own very brief entanglements with this system as a court reporter, I have often observed how lawyers tend to waltz into the courtroom without actually knowing anything at all about the case they are supposed to be fighting.

Often they will not even have met their client once before defending him or her in court; and with some notable exceptions you just don't get the level of client-lawyer preparation - including cross-examination rehearsals, etc - of the kind one gets to see on programmes like Ally MacBeal.

OK: now that I have had my little rant at the entire legal profession, I feel the time has come to at least try to get to the bottom of this phenomenon. Why, exactly, are so many Maltese criminal lawyers so utterly... useless?

Obviously I can't provide a scientific answer, but my guess (for what it's worth) is that in many cases, they would view their current job as little more than a temporary stepping stone to something else. Which also means that they tend to perceive 'clients' as unwelcome and annoying little distractions, ideally to be gotten rid of as soon as possible.

Some would have their eyes affixed on the possibility of a future career in politics. Some would aspire to land themselves a nice cosy retainer, which would require keeping on good terms with the powers that be. Others still may wish to one day be elevated to magistrate or judge themselves... and in a country where magistrates and judges are still appointed directly by politicians, these separate ambitions tend to eventually overlap and fuse into one and the same thing.

Whatever the case, the bottom line tends to be the same.

Lawyers with 'higher things' on their minds are highly unlikely to want to rock the boat in any way; and if keeping that boat steady also means occasionally consigning their own clients to prison, and washing their hands of all blame afterwards... well, so be it.

That is after all a very small price to pay for a leg up the career ladder, don't ya think?