The perpetrator behind these crimes became known as “The Scarborough Rapist. ” This offender was Paul Bernardo. However, Bernardo did not act alone. He and his wife, Karla Homolka, tragically raped and murdered a number of young women, including Homolka’s younger sister, Tammy Homolka. In 1993, both Bernardo and Homolka were charged with sexual assault and murder. The investigations that followed exposed one of Canada’s most infamous killer couples. Kenneth Murray, a criminal lawyer, was retained by Bernardo to defend him in court.
For 71 days in 1993, police searched Homolka and Bernardo’s home but failed to discover incriminating evidence. After the search warrant ended on May 6, 1993, Bernardo provided instructions to Murray to find hidden tapes, which Murray then found and removed. Murray kept the tapes for seventeen months, though he did not watch them initially. On May 14, 1993, Homolka was offered a plea bargain in exchange for her testimony against Paul Bernardo. Seeing as though the Crown had limited evidence to use in Bernardo’s prosecution, Homolka’s testimony was vital to the case.
On May 18, Bernardo was charged with first-degree murder and authorized Murray to view his tapes. Murray then rented video equipment, allowing him to copy the tapes. By then, Homolka had taken her plea bargain, accepting twelve years in prison. In August of 1994, Murray asked defence lawyer John Rosen to take over the Bernardo case. Murray wrote the Law Society of Upper Canada, seeking advice on what to do regarding the tapes. The Law Society instructed that the tapes be turned over to the Crown. On September 1, 1995, Bernardo was found guilty of all charges and sentenced to 25 years.
In January 1997, Murray was charged with obstructing justice and conspiracy to obstruct justice. The ethical dilemma present, in this case, was the debate regarding if solicitor-client privilege and protecting their client overrules laws concerning obstruction of justice. Many laws were broken by Kenneth Murray, due to his prolonged possession of the tapes, and failure to submit them to the Crown. In Canada’s Criminal Code, it outlines that anyone who willfully attempts to obstruct the course of justice is guilty of an offence. Although it may be obligatory for a lawyer to take possession of physical evidence to defend their client, it is n offence to remove evidence to prevent the court/police of charging their client.
Although lawyers are subject to solicitor-client privilege, this privilege cannot and does not permit a lawyer to break a law. Murray’s behaviour and actions obstructed the course of justice in regards to Homolka’s case. The Crown offered Homolka a plea deal, due to their lack of substantial evidence against Bernardo. It is believed that if the prosecution lawyers had been in possession of the tapes, the need for Homolka’s testimony would lessen, thus, the plea bargain would never have been offered.
In Murray’s trial, lawyers stated that the tapes proved much more than previous evidence found. The concealment affected all aspects of the justice system regarding both Bernardo’s and Homolka’s cases. Murray believed the tapes were a necessary part of Bernardo’s defence and in order for his strategy to defend Bernardo successfully, it was required that he conceal them. The Crown had portrayed Homolka as a woman who was abused by her husband and was being controlled by him [Bernardo. ] Murray believed the tapes would show that Homolka was lying, and she was capable of murder.
Eventually, in 1997, due to Murray’s actions, Kenneth Murray was charged with, and found guilty of, with obstructing justice. This ethical dilemma presented did not positively impact the greater good. Lawyers have a duty to society, in general, to promote the rule of law and see justice done. By obstructing justice, Murray disobeyed his duty to society. The public has the right to expect that everyone is presumed innocent until proven guilty, and for the police and prosecutors to have to prove an individual guilty beyond a reasonable doubt.
By withholding information from the court, Murray wrongly protected Mr. Bernardo. Investigations are expected by the public to be properly undertaken by the Crown in order for the public to continue to have faith in the justice system. Due to the Crown’s inability to find the tapes hidden by Paul Bernardo and removed by his lawyer, faith in the Crown was lost as their lack of success in finding crucial evidence impacted the Crown’s ability to “properly” investigate and prosecute both Paul Bernardo and Karla Holmolka. During the trials, the Crown lacked evidence against Bernardo.
In order to ensure a conviction against Bernardo, the prosecution arranged a plea bargain whereby Homolka would testify against her husband, in return for a lesser sentence (12 years) for her. If the prosecution had been in possession of the tapes, they would not have needed Homolka’s testimony, and she would have received a much longer prison sentence. Because the prosecution was not in possession of the tapes, the justice received by the families of the victims of Paul Bernardo and Karla Homolka was greatly diminished.
Homolka, a murderer, received a lesser punishment in contrast to her husband, Paul Bernardo, simply due to her deal. Homolka drugged and killed her own sister, and actively participated in the sexual assaults and murders of other young women. By Homolka accepting a plea bargain, neither her own family nor the families of her victims received the justice they deserved and needed. Kenneth Murray did not act correctly nor responsibly when faced with this ethical dilemma.
A lawyer must represent their client with undivided loyalty. Defence lawyers are also given the duty of observing their client’s instructions if they are legal and ethical. Although Bernardo told Murray about the tapes within the house, Murray did not have an obligation to his client to retrieve the tapes, and should have left them for the police to find instead. The most difficult issue involved in this dilemma is regarding the confidentiality between Murray and his client, Paul Bernardo.
Murray claimed that “lawyers are required to keep absolutely confidential all communication with their clients are are under no obligation to turn over incriminating evidence. ” However, confidentiality is limited in many ways. It cannot be implemented if a crime could result from it. The tapes were not protected by confidentiality, therefore, Murray’s withholding of the evidence was an act of incrimination. Murray put solicitor-client privilege above the law and consequently, was punished with charges of obstruction of justice.