First published August 19
This article pulls together just about all Evan’s got to say about the law ... “The legal trade, in short, is nothing but a high-class racket.” - Professor Fred Rodell, Yale Law School
Taxpayers fund legal systems and pay the wages of judges, prosecutors, court officials, legal academics etc.
An Australian judge, Russell Fox, researched two almost totally different legal systems for 11 years. He concluded that justice means fairness, and fairness and morality require a search for the truth, otherwise the wrong side may win.
The French inquisitorial system seeks the truth; the English adversary system does not. On Justice Fox’s definition, the English system is unjust, unfair and immoral.
About 95% of accused are convicted in the French system. About 50% are convicted in the English system (about 25% in rape cases). This is useful for Cardinal George Pell, who is facing charges of sexual abuse.
Why the English system is a racket
Rome used an inquisitorial system from about 449 BC. As a colony of Rome from 43 AD, England presumably used that system, but in the Dark Ages after the Empire fell in 476, England and west Europe succumbed to superstition and changed to an anti-truth accusatorial (prove it) system, trial by barbaric ordeal, and verdict by some unknown god.
For example, if the Witchfinder-General accused a girl of being a witch, she was trussed and thrown into a section of a river which had been blessed by a priest. If the blessed water rejected her, i.e. she floated, the deity’s verdict was guilty; the girl was fished out and hanged or burned at the stake. If the blessed water received her, i.e. she sank, she had the consolation that the god’s verdict was innocent.
The Byzantine (East Roman) Empire continued to use an inquisitorial system, and the Emperor Justinian had it codified in 535. A digest of his Code surfaced in Italy about 1070 and was studied at the West’s oldest university, Bologna, founded in 1088.
London, where the legal racket began, has been awash with rackets for centuries. Tax expert Nicholas Shaxson said in April 2016: “London is the epicentre of so much of the sleaze that happens in the world. Usually there will be links to the City of London, to UK law firms, to UK accountancy firms, and to UK banks.”
William II is entitled to part of the blame. Born c. 1056 and king from 1087, he was a short, fat man with a red face and yellow hair who never married; he preferred sodomy. He put every public office on sale; buyers in turn extorted bribes from people who dealt with the office.
Widely despised, William was shot dead on 2 August 1100 and his body left where it lay, but his corrupt system lived on; when the common law began in 1166, judges took bribes and lawyers were presumably their bagmen (as they were in Chicago quite recently; see Operation Greylord.)
Among the consequences:
• Richard Posner, a US judge/economist, says judges and lawyers have always been a cartel. Members of a cartel collude to increase their profits.
• Judges are not trained as judges. They are lawyers trained in sophistry one day and judges the next. Sophistry is a technique of lying via false arguments, trick questions, shifting the goalposts etc.
The future Pope Innocent III studied jurisprudence at Bologna University and almost certainly read the digest of Justinian’s Code; as a Cardinal from 1190, he used an inquisitorial system to investigate clerical misbehaviour. As Pope from 1198 to 1216, he was master of Europe and England.
England was represented at Innocent’s “glittering” church-state council in Rome (population about one million) in November 1215. The council accepted his inquisitorial system, and it was shortly adopted by European lay courts, but in 1219 a few probably corrupt judges in London (population about 11,000) chose to persist with the accusatorial system, minus the ordeal and verdict by deity.
Lawyers became the “dominant influence” in Parliament about 1350.
Judges were originally in charge. On a set wage (plus bribes), they had no incentive to spin the process out; trials were quite short. Lawyers paid by the day do have an incentive and they took control in the 15th century.
Lawyers may be clever and charming but they are not universally loved. Some are even said to be shysters, from the German scheisser, a shitter. Other opinions:
• “The first thing we do, let’s kill all the lawyers.” Dick the Butcher, 1450.
• “… the art of proving … that white is black and black is white according as they are paid.” Jonathan Swift, Gulliver’s Travels, 1726.
• “The one great principle of the English law is to make business for itself.” Charles Dickens, Bleak House, 1853.
• “If all the lawyers were hanged tomorrow, and their bones sold to a mah-jongg factory, we’d be freer and safer, and our taxes would be reduced by almost half.” H. L. Mencken, Sage of Baltimore, 1924.
• “We have a system that is run entirely by lawyers for their own interests and for their own benefit.” US Judge Harold Rothwax, 1996.
• “It’s only the 99% of lawyers who give the rest a bad name.” Joel Siegel, Good Morning America, 2002.
The vehicle for the lawyer-takeover was pleadings, which don’t have to be true but are supposed to narrow the issues. Lawyers originally pled orally before a judge for a few hours until all agreed on the issue(s); the case then went to a jury.
The adversary system began 10 years after the failure of Dick the Butcher’s final solution for the lawyer problem. In 1460, lawyers began to exchange written pleadings, thus cutting judges out of the process, and judges did not stop them.
Pleadings confirm Professor Rodell. Lawyers can prolong written pleadings, with the meter running, for months or years in see-saw fashion: statement of claim, defence, reply, rejoinder, surrejoinder, rebutter, surrebutter etc. Judges do the decent thing: they try to stay awake.
The law racket was eventually imposed on England’s colonies, including America in 1607 and New South Wales (along with 751 convicts) in 1788.
London is London yet: the disputed will racket. About 1650, a Chancellor, probably Bulstrode Whitelocke, ruled that in cases of disputed wills lawyers were to be paid, not by clients, but from the deceased estates. Chancellors then held hearings but did not finalise cases for decades; the estates paid lawyers for turning up.
A disputed will case, Jennens v Jennens, was the model for Dickens’ endless Jarmdyce v Jarndyce in Bleak House (1853). Jennens concerned an estate worth some $1.5 billion today; 32 successive Chancellors kept Jennens going for 117 years (1798-1915) while lawyers “devoured” the estate.
How the racket works
US lawyer Alan Dershowitz said: “The American criminal justice system is corrupt to its core. The courtroom oath – ‘to tell the truth, the whole truth and nothing but the truth’ – is applicable only to witnesses. Defense attorneys, prosecutors and judges don’t take this oath – they couldn’t!”
Australian lawyer Brett Dawson said it is a get-the-guilty-off system.
OCLS details 24 truth-defeating mechanisms. Eight are mentioned here. Dedicated court-watchers can tick off those deployed at committal hearings and trials, including Cardinal George Pell’s.
Delay. Peter Faris QC said the most important defence is delay. Witnesses forget, suffer from dementia, or die. Cardinal Pell is 76; he was born on 8 June 1941. His case will be put before a magistrate in October 2017, but only for mention.
The right of silence. George Orwell said: “The most powerful lie is the omission.” An omission by a judge, Sir James Dyer, in 1568 eventually enabled millions of criminals to escape justice.
A rule about answering questions was based on 4th century church law: “Although no one is compelled to accuse himself, yet one accused by rumour is compelled to present himself to show his innocence, if he can, and to clear himself.”
Dyer omitted everything except “no one is compelled to accuse himself” and freed an accused who refused to speak.
Dyer’s lie was ignored until it was repeated by the first legal academic, William Blackstone, in his Commentaries on the Law of England (1765-69). Jeremy Bentham, a lawyer, said the book was “ignorance on stilts” but it sold well in England and America and seems to have persuaded James Madison, a big slave-owner bur a tiny (5 ft. 4 in.) person.
Madison was not a lawyer but he read law books and was largely responsible for the first eight amendments to the US Constitution which are the Bill of Rights (1791). He fatally entombed the Dyer/Blackstone lie in the Constitution as the Fifth Amendment.
Legal academic David Dixon said about half of those who refuse to answer questions are convicted.
Committal hearings. Only the prosecution case has to be revealed. This enables defence lawyers to plan ways of countering the allegations. The inquisitorial system does not have committal hearings.
Shifting the blame. The “theory of the case” is a delicate name for a procedure in which lawyers say it wasn’t our guy so it must have been someone else. John Dobies, a Sydney lawyer, pilloried the technique in what he called The Polar Bear Defence: if there were scratches on the body of a Sydney victim, the murderer may have been a polar bear.
Concealing a pattern. The Chancellor was a politician-judge. In 1894, Farrer Herschell, one of the corrupt Chancellors who kept Jennens going for 117 years, concocted a rule which conceals evidence of a pattern of criminal behaviour. Three effects of his rule against “similar facts”:
• Jurors get the false impression that a repeat offender is a first offender.
• A person charged with several similar crimes can get a separate trial on each because evidence by all victims at one trial might reveal a pattern.
• It then becomes the word of the accused against the word of a single accuser, and beyond reasonable doubt (see below) favours the accused.
The Melbourne Herald-Sun reported on 26 July 2017: “… experts warn the [Cardinal George Pell] case could run for two years, owing to the complexities of hearing historical sex charges and a potential application for separate trials on different allegations.”
Lawyers’ right to lie. In 2006, US law professor Monroe Freedman:
• Confirmed that ethics is a country in south-east England.
• Gave lawyers an excuse to lie.
Freedman said: “… there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal … and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
And that even if a rapist privately admits his guilt to his lawyer, the lawyer can still ethically let him deny his crime on oath and can question the victim about her sex life to suggest she consented. Rape victims have vomited on the witness box. The American Bar Association gave Freedman its highest award for his work on ethics.
Attacking prosecution witnesses. Irving Younger (1932-88), a US prosecutor, defence lawyer, academic and judge, suggested an all-purpose question: “Is it not true that last night you committed sodomy on a parrot?”
Nobbled jurors. A lawyer, Aubrey Gillespie-Jones, noted a 19th century Dubbo case in which a defence lawyer apparently contrived to empanel jurors sympathetic to a cattle thief. The verdict:
Judge’s associate: Do you find the accused guilty or not guilty of cattle-stealing?
Foreman: Not guilty, if he returns the cows.
Judge: You swore you would try the issue between our Sovereign Lady the Queen and the accused and find a true verdict according to the evidence. Go out and reconsider your verdict ...
Associate. Have you decided on your verdict?
Foreman: Yes, we have. We find the accused not guilty, and he doesn’t have to return the cows.
Beyond reasonable doubt. Along with the right of silence, the jury formula, devised about 1800, is the most effective device for getting criminals off.
Jurors have never known what the formula means. New Zealand Law Reform Commissioners questioned 312 jurors who had sat on 48 cases from attempted burglary to murder.
The Commissioners reported in 1998 that the jurors “generally thought in terms of percentages and debated and disagreed with each other about the percentage required for ‘beyond reasonable doubt’, variously interpreting it as 100 per cent, 95 per cent, 75 per cent, and even 50 per cent.”
Justice Christopher Wright, of the Tasmanian Supreme Court, said: “Too often unsure jurors will shelter behind … beyond reasonable doubt, making it the safe option ... I am fully convinced that juries return a wrong verdict in about 25% of all cases.”
In England, jurors can be told that the formula means “Are you sure?” but a High Court decision written in 1960 by Sir Eddie McTiernan (1892-1990, High Court 1930-76) ensures that Australian judges can tell jurors no more than that beyond reasonable doubt means beyond reasonable doubt.
Professor Fred Rodell said 99.44% of lawyers don’t know the legal trade is a racket. Perhaps it was a joke.
All in all, it may surprise that as many as 50% of accused are convicted. The reason may be that prosecutors, who tend to be under-resourced, only proceed in cases which should be watertight.
Napoleon reforms the inquisitorial system
T. S. Eliot on chance:
Footfalls echo in the memory
Down the passage we did not take
Towards the door we never opened
Into the rose garden.
Corrupt lawyers also infested the French legislature. Napoleon, 30, told his generals on Saturday 9 November 1799: “We must get rid of these lawyers.”
Next day, 500 politicians at the Orangerie Palace at St Cloud planned to guillotine Napoleon but his cavalry general, Joachim Murat, got in first. To beating drums, he marched a column of grenadiers into the palace and gave a cheery order: “Throw me these blighters out of the window.”
That was the end of the lawyer-politicians but it would have meant nothing for the law except for a chance of timing at about 5.20 pm on Saturday 14 June 1800. There were two battles of Marengo that day between France and a coalition financed by England and led by Austria. Napoleon lost the first. A. G. Macdonell briskly recorded the fluke in the second:
The French counter-attack was, by chance, one of the most perfectly timed tactical operations by combined infantry, artillery, and cavalry in the whole history of warfare … Suddenly, through the dense smoke, [artillery General Auguste] Marmont saw, not 50 yards in front, a battalion of Austrian Grenadiers advancing in perfect formation … Marmont … fired four rounds of canister at point-blank range into the compact battalion, and at that precise moment [General Louis] Desaix went forward with a shout, and young Kellermann, son of old Valmy Kellermann, came thundering down on the flank, through the mulberry trees and the tall luxuriant vines, with a handful of heavy cavalry. A minute earlier, or three minutes later, and the thing could not have succeeded, but the timing was perfect, and North Italy was recovered in that moment for the French Republic.
Napoleon, who did not eat before a battle, was famished. His cook, Dunand, invented a meal from materials to hand, a chicken, some tomatoes, mushrooms, eggs, prawns, and a crayfish, all cooked in brandy flames. Today’s Chicken Marengo is essentially chicken, mushrooms, tomatoes, perhaps with a fried egg on top.
England did not finance another coalition for five years. Napoleon thus had time to apply his remarkable intellect to reforming and codifying the inquisitorial system. Today, it is the most accurate and cost-effective system. It affects twice as many as the adversary system.
Details of Marengo and Napoleon’s approach to reform are at pp. 62-68 of OCLS. A comparison:
The French system. Trained judges control the process. They use a series of filters to protect the innocent; do not conceal evidence; and do not let lawyers use sophistry to pollute the truth. Witnesses give evidence as a narrative. The commonsense of ordinary people is valued: jurors sit on the bench with judges and can outvote them. Suspects must answer questions. Most hearings take a day or so. About 95% of accused are convicted. Reasons are given for verdicts.
The racket. Lawyers control the process. They can use sophistry to confuse witnesses and jurors and can prolong trials unnecessarily for weeks or months, again confirming Professor Rodell. Suspects can refuse to answer questions. Judges conceal evidence on the ground that jurors are stupid. It gets sillier; judges sitting without a jury have to conceal evidence from themselves, which is quite a trick and implies that judges are stupid. No argument there. As noted, about 50% of accused – about 75% in rape cases – get off. Jurors do not give reasons.
What might have been. If Admiral Villeneuve had followed Napoleon’s instructions in October 1805 and sailed north instead of south, England and its former colonies would probably use the inquisitorial system.
The racket persists because lawyers, after 6½ centuries, are still the “dominant influence” in English-speaking legislatures. In the US today, lawyers are 0.2% of the population and 60% of the Senate. Hence the Tammany Hall saying: “More lawyers live on politics than flies on a dead camel.”
In effect, there are basically three political parties: a conservative party, a less conservative party, and a lawyer party consisting of lawyers from the other two parties. Perhaps it could be called The Dead Camel Party or The Shitters’ Party.
The obvious solution, change to a truth-seeking system run by trained judges, will thus require sufficient lawyers to be winkled out of legislatures:
Vote 1: Anyone but a lawyer.
The winkle may take 10-15 years but will have general support; Justice Russell Fox said the public knows that “justice marches with the truth”.
Meanwhile, Cardinal George Pell has reason to be grateful to London’s sleazoid lawyers and their racket.
Note. Sources omitted for brevity are in Our Corrupt Legal System (OCLS).
*Evan Whitton read History at the University of Queensland and was Chief Reporter at The Sydney Morning Herald. The text of Our Corrupt Legal System is free at netk.net.au/whitton/ocls.pdf , a section of a site run by legal academic Dr Robert Moles, an international authority on miscarriages of justice. Dr Moles said the book “should be required reading on Introduction to Law courses in all law schools.”