This is the15th extract from Our Corrupt Legal System. The author, Evan Whitton, is a legal historian, a trade almost as rare as the pig-footed bandicoot. The book is available free at netk.net.au/whittonhome.asp
The story so far
Note. George Orwell said: “The omission is the most powerful form of lie, and it is the duty of the historian to ensure that those lies do not creep into the history books.” Law schools’ neglect of legal history facilitates self-deception and rationalisation in lawyers and judges, and means that much of this will be new to them. Ends note.
The common law in England (and later its colonies) began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel to increase profits. Common law judges have never been trained as judges; they are lawyers adept at sophistry, a technique of lying, one day and judges the next.
Justice Russell Fox said the public knows that “justice marches with the truth”. European courts adopted a truth-seeking system after a conference attended by England in 1215. English judges rejected that system in 1219.
Lawyer-politicians have been able to block change to a truth-seeking system since they became an oligarchy in Parliament about 1350. (Vote 1: Anyone but a lawyer.)
Yale law professor Fred Rodell said the adversary system is a racket. The civil version dates from 1460, when lawyers began to take control of evidence. That enabled them to spin the process out and extract more money from clients.
Harvard ethics professor Arthur Applbaum said: “lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false.”
Legal academics joined the cartel after Billy Blackstone, a serial liar, began the first law school at Oxford in 1758.
From 1800, Napoleon reformed the truth-seeking system. It is now the most widespread and important system in the world. We would probably have that system if Admiral Villeneuve had followed Napoleon’s instructions in 1805.
Some lawyers, no less than some journalists, take the view that ethics is a county in south-east England, home of the succulent Colchester oyster.
Sanson, Executioner of Paris, did not invent the system which sanctioned his ghastly work, but lawyers did invent the adversary system and its ‘ethics’ which sanctions theirs. Professor Lester Brickman, of New York’s Cardozo School of Law, said in 1997: ‘When the ethics rules are written by those whose financial interests are at stake, no one can doubt the outcome.’
Ethics and morals are synonymous. Professor David Luban wrote in Lawyers and Justice: An Ethical Study: ‘ … the standard conception [of lawyers’ ethics] simply amounts to an institutionalized immunity from the requirements of conscience.’
Professor Luban said Professor Murray Schwartz, of UCLA, was criticizing lawyers’ ethics when he wrote in The Professionalism and Accountability of Lawyers (California Law Review, 1978): ‘When acting as an advocate for a client, a lawyer … is neither legally, professionally, nor morally accountable for the means used or the ends achieved.’
I mentioned that to a Sydney psychiatrist, Dr Elizabeth O’Brien. (No relation to my daughter.) She said: ‘That sounds like psychopathy.’ Psychopaths have no conscience.
Ross Coulthart asked Justice Geoffrey Davies, of the Queensland appeal court, about ethics in a television programme, The Justice System Goes on Trial (Sunday, August 23, 1998):
Do you think there’s a case to argue that some of the ethical rules that lawyers have actually almost encourage dishonesty among lawyers? – Yes I do. One of the examples is that a lawyer can ethically deny an allegation in the opponent’s pleading knowing it to be true.
You’re kidding. So you can basically lie? – Well, what lawyers would say is that you are putting the other side to proof.
It’s a lie though, isn’t it? – It is.
Law professor Charles Wolfram, of Cornell University, New York, wrote in Modern Legal Ethics (West, 1986): ‘[The lawyer’s role is] institutionally schizophrenic . . . a lawyer’s objective within the system is to achieve a result favorable to the lawyer’s client, possibly despite justice, the law and the facts.’
Legal ethics are thus self-contradictory. Lawyers are not supposed to deceive the court, but they claim a ‘sacred duty’ to do whatever it takes to get the best result for the client. If he is in the wrong, the best result is to win the case; if he is a criminal, the best result is to get him off. Both results necessarily deceive the court and pervert justice.
Bruce Anthony Hyman, 48, is said to be only British lawyer in 800 years to go to prison for perverting justice.
Hyman, a barrister, represented a woman whose ex-husband, representing himself, was seeking greater access to their daughter. Hyman forged a document, anonymously sent it to the ex-husband, and denounced him as the probable forger when he tendered it. Exposed as the source, Hyman got 12 months in September 2007, but was released in two months.
Professor David Luban begins his book on ethics with The Case of the Wicked Uncle. The following summary is drawn from his book and the CDNB which spells the uncle’s title as Anglesey rather than Anglesea.
The uncle, Richard Annesley (b. 1694), was a white collar organised criminal. When his brother, Lord Latham, died in 1727, he used bribery to steal the title from his nephew, James Annesley (b.1715), and had the boy kidnapped and sent into slavery in America. He succeeded a cousin as sixth Earl of Anglesey in 1737.
James Annesley escaped and returned to Dublin in 1741. His uncle offered a Dublin solicitor, James Giffard, £10,000 (some £1 million today) to get the young man hanged for an accidental shooting. ‘If I cannot hang James Annesley,’ the Earl said, ‘it is better for me to quit this kingdom and go to France, and let Jemmy have his right.’
Giffard prosecuted James for murder, but a jury at London’s Old Bailey found him not guilty. Giffard charged the Earl £800 (c.£80,000 today), but Anglesey refused to pay. Giffard sued for the money and their conspiracy to procure a judicial killing emerged at the action. James then sued his uncle to be declared the rightful Lord Latham.
The trial began in the Dublin Court of Exchequer on 11 November 1743 and ran for a then record 15 days. When Giffard was called as a witness for James, Anglesey’s new lawyers adopted a strategy that could have credence only in an Alice in Wonderland system.
The lawyers argued that the attempt to procure Annesley’s execution was:
1) A perfectly proper legal proceeding;
2) So wicked that no one could believe a lawyer and his client would be party to it.
Thomas Burroughs, for Anglesey, put the second argument to Giffard:
Did you suppose from thence that he [the Earl] would dispose of that £10,000 in any shape to bring about the death of the plaintiff? – I did.
Did you not apprehend that to be a most wicked crime? – I did.
If so, how could you … engage in that project, without making any objection to it? – I may as well ask you, how you came to be engaged for the defendant in this suit?
Giffard was thus claiming in 1743, 10 years before Blackstone began lecturing on a system ‘dictated by God himself’, that the system allows lawyers to engage in organised crime: systematic criminal activity for money or power.
Justice Sir James Mathew (1830-1908) observed: ‘Justice is open to all, like the Ritz Hotel.’ James Annesley was awarded the verdict and the title of Lord Latham, but his uncle’s lawyers procured – by bribery, it was believed at the time – a writ of error to set the verdict aside.
James had no money to pursue his claim in the House of Lords. Anglesey continued as Lord Latham until he died in 1761, a year after the real Lord Latham.
Lawyers’ ‘sacred duty’ to do whatever it takes came from the fertile brain of Henry Brougham (1778-1868). He invented The Edinburgh Review (1802), London University (1828), a single-steed, four-wheel conveyance (1829), and Cannes (1834).
In 1820, Brougham defended Queen Caroline in a divorce action brought against her in the House of Lords by George IV (1762-1830), who ‘looked more like an elephant than a man’, Brougham informed their lordships:
An advocate, by the sacred duty which he owes his client … must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client’s protection.
That sounds good, if a little overripe, and Professor Dershowitz notes it approvingly in The Best Defense, but Professor Franklin Strier, of California State University, indicates in Reconstructing Justice: An Agenda for Trial Reform (University of Chicago Press, 1994) that Brougham later admitted it was blackmail, which is the crime of theft by extortion.
The Act of Settlement (1701) said a king who marries a Catholic must be treated ‘as if he were naturally dead’. Brougham’s words were a threat, in code, to His Most Sacred Majesty that, unless he dropped the action, Brougham would reveal that he had secretly married a Catholic, Mrs Maria Fitzherbert. That was an offer George could not refuse: it would inevitably rob him of the crown, the palaces and the money.
Lawyers today routinely resort to blackmail in negligence and libel cases. A more polite term, greymail, is used when they demand documents they know governments dare not disclose. Compared to blackmail and conspiracy to murder, lying may seem relatively mild, but lawyers control evidence and habitual lying necessarily poisons justice at the fount.
Law professor Monroe Freedman, then of George Washington University Law Center, published Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions in the Michigan Law Review in 1966. The questions, with his answers in brackets, were:
Is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth? [Yes]
Is it proper to put a witness on the stand when you know he will commit perjury? [Yes]
Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury? [Yes]
Professor David Luban said Professor Freedman ‘later reversed himself’ on the third question in Lawyers’ Ethics in an Adversary System (Bobbs-Merrill, 1975], but a study by Kenneth Mann (Defending White-Collar Crime: A Portrait of Attorneys at Work, Yale University Press 1985) indicated that lawyers typically follow Freedman’s original advice. Professor Luban continued:
But he [Professor Freedman] reiterated his position on his first two points, intensifying his exposition of the second with a ghastly hypothetical.
According to Freedman, the lawyer defending an accused rapist who claims that the victim consented should be willing to cross-examine the rape victim about her sex life in order to make the case that she is promiscuous enough to solicit strangers – even though the client has privately told the lawyer that he had actually raped her.
In short, even if a client tells his lawyer he is guilty of rape, the lawyer can let the rapist go in the box and falsely deny his crime on oath, and can back up that lie by cross-examining the girl about her sex life to falsely suggest she consented.
The technique of ‘destroying’ such witnesses is at once brutal and pornographic, and tends to confirm the view of Professor James R Elkins,that the adversary system’s philosophy of cruelty leads to ‘professional malevolence’.
Age has not wearied Professor Monroe Freedman. Now of Hofstra University (founded 1970), New York, in 2006 he published In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct (Hofstra Law Review, vol 34). The abstract says:
This article concludes that there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal, can ethically make a false statement of material fact to a third person, and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Dishonest, fraudulent and deceitful trial lawyers become judges without missing a beat.
A Sydney lawyer, Stuart Littlemore, stated lawyers’ ethics accurately when Andrew Denton interviewed him on Channel 7, a television station, in October 1995:
Denton: It’s a classic question. If you’re in a situation where you are defending someone who you yourself believe not to be innocent - can you continue to defend them?
Littlemore: Well, they’re the best cases; I mean, you really feel you’ve done something when you get the guilty off. Anyone can get an innocent person off; I mean they shouldn’t be on trial. But the guilty - that’s the challenge.
Denton: Don’t you in some sense share in their guilt?
Littlemore: Not at all.
[At the time, Littlemore presented MediaWatch, and was properly severe on reporters’ ethical lapses.]
Court TV’s Nancy Grace wrote in Objection! How High-priced Defense Attorneys, Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System (Hyperion, 2005):
‘I was just doing my job.’ That’s the tired excuse offered up by every defense attorney whenever they’re asked how they do what they do – how they pull the wool over jurors’ eyes to make sure the repeat offender they’re defending walks free. I’ll never know how they can look in the mirror when their client goes out and commits another crime, causing more suffering to innocent victims. I’ve heard, ‘I’m just doing my job – it’s in the Constitution,’ too many times to count.
Sydney lawyer John Marsden (1942-2006) admitted in I Am What I Am (Viking, 2004) that he used a false consent defence to get Ivan Milat off rape in 1974:
Then I put to her something that has haunted me to this day … I suggested that her sexuality might have had something to do with what had occurred with Ivan Milat.
Crying and under stress, she ended up agreeing – and in that moment I knew we had won … we had put into their [jurors] minds that the sex may indeed have been consensual …
I am not proud of my conduct that day, but … I had to act according to the ethics of the profession… I had a job to do and I did it.
Milat went on to rape and murder seven young backpackers from, variously, Germany, England and Australia, in circumstances similar to the 1974 case. He was found guilty of the murders and sent down for life in 1996.
Professor Monroe Freedman defended two lawyers’ dubious behaviour on the ground that they ‘had kept faith with their client, and that is essential to the proper working of the adversary system’. Professor David Luban commented:
Everything rides on this argument. Lawyers have to assert legal interests unsupported by moral rights all the time – asserting legal rights is what they do, and everyone can’t be in the right on all issues.
Unless zealous representation could be justified by relating it to some larger social good, the lawyer’s role would be morally impossible.
That larger social good is supposed to be the cluster of values – procedural justice and the defense of rights – that are associated with the adversary system.
Professor Luban quoted Professor Murray Schwartz’s response to that argument:
It might be argued that the law cannot convert an immoral act into a moral one … by simple fiat.
Or more fundamentally, the lawyer’s non-accountability might be illusory if it depends upon the morality of the adversary system, and if that system is immoral … the justification for the … Principle of Non-accountability … would disappear.
As we have seen, the system is immoral because, apart from everything else, it does not search for the truth. The Principle of Non-accountability thus disappears.
Aristotle’s petitio principii (assuming the initial point) fallacy says if the major premise is false, the conclusion is invalid. The adversary system syllogism goes something like this:
Major premise: The adversary system is the best system of justice.
Minor premise: The system requires trial lawyers to pervert justice.
Conclusion: Perverting justice is ethically acceptable.
The major premise is plainly false; the adversary system is demonstrably not a system of justice, let alone the best. Lawyers’ ethics are thus based on a fallacy.
Next. The cartel: law as business