24 truth-defeating devices

This is the 22nd extract from Evan Whitton’s Our Corrupt Legal System, available free at netk.net.au/whittonhome.asp .

The story so far.

English common law began as an extortion racket in 1166 and never really recovered. Extorting judges and their lawyer-bagmen formed a cartel to increase profits.

Judges have never been trained as judges; they are lawyers trained in sophistry, a method of lying, one day and judges the next. A US lawyer, Alan Dershowitz, said: ‘… lying, distortion, and other forms of intellectual dishonesty are endemic among judges.’

Judges formally rejected a truth-seeking system in 1219.

Lawyer-politicians in have been able to block change since they became the “dominant interest” in Parliament about 1350. (Vote 1: Anyone but a lawyer.)

The civil version of the adversary system dates from 1460; the criminal version from 1695. In that system Trial lawyers – described as serial liars because they are good at sophistry – gather and present evidence, question witnesses, and can spin the process out.

In the past two centuries, judges have created a number of truth-defeating devices which make it relatively easy for lawyers to get rich criminals off. The devices were also applied to the civil system, thus making litigation even more of a lottery.

Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.

Tax evasion organised by judicial criminals such as Sir Garfield Barwick has stolen billions from pay-as-you-earn taxpayers.

24 truth-defeating devices

* indicates a rule which conceals evidence

4. Improper use of presumption of innocence

The presumption of innocence is a nice legal fiction; if taken literally, no criminal would be charged. The reality is a presumption of agnosticism: the suspect/accused may be innocent, or he may not. The presumption is not absolute; some jurisdictions have a presumption of guilt for such cases as goods in custody: if police find heroin in the trunk of a car, it is presumed to be the owner’s unless he can prove otherwise.

In itself, the presumption of innocence is a relatively harmless fiction; it becomes a vice when used to prop up other anti-truth devices, e.g. the rule against self-incrimination and the rule against evidence of a pattern of criminal behaviour.

Lord Chief Justice Rayner Goddard got a severe birching for saying of pattern evidence (R v Sims, 1946): ‘If one starts with the general proposition that all evidence that is logically probative [tending to prove guilt] is admissible unless excluded [by a specific rule], then evidence of this kind does not have to seek a justification.’

The law lords said (R v Hall, 1952) Goddard was wrong because his view tended to subvert the presumption of innocence. He might have replied that all probative evidence tends to subvert the presumption of innocence, but he had to toe their lordships’ line.

5. Precedent

Stare decisis (the decision stands) means abiding by precedents set by judges who may have been wrong or corrupt, but lock bad law into the system. Judges and lawyers can also riffle through precedents until they find one that suits their agenda.

Precedent also offends the rule against hearsay (see below), which conceals the evidence of speakers who are not available for cross-examination which might show they were wrong. The corrupt Lord Eldon said in Sheddon v Goodrich (1803): ‘ … it is better the law should be certain than that every judge should speculate upon improvements in it.’ Unfortunately, Lord Eldon is not available for cross-examination.

It was only after criminal work became a business proposition for lawyers that judges became bound by precedent, however bad. Professor Theodore Plucknett wrote in A Concise History of the Common Law: ‘… even as late as the days of Baron Parke [1782-1868; Court of Exchequer 1834, created baron 1856] … it was possible for that very learned judge to ignore decisions of the House of Lords … The 19th century produced the changes which were necessary for the establishment of the rigid … theory as it exists today.’

David Pannick QC, [Lord Pannick, as he now is] of London, wrote in Judges (Oxford 1988): ‘There are many things wrong with the English legal system. A large proportion of them can be explained by our reverence for the doctrine of precedent. We do things not for any rational reason but because they have previously been done that way.’

He noted an 18th century judge, Samuel Lovell, who was ‘overtaken by the tide’, but refused to escape drowning unless a precedent could be quoted for judges mounting the coach-box.

6. The theory of the case: fabricating a defence

Although lawyers know that almost all accused are guilty, they claim that legal ‘ethics’ allow them to do whatever it takes, including fabricating a defence, to create a ‘reasonable’ doubt in the mind of a juror.

Techniques vary, but most involve attempts to shift the blame from the client to, variously, the victim, police, prosecutor, the media, or some other person or thing. That is called the theory of the case: it is not our guy; therefore it must be some other person or thing. A criminal trial can thus be a lavishly-produced charade. The judge, who will have used the theory of the case in his days as a trial lawyer, may mentally tick off the fabrications as they are produced.

John Dobies, a Sydney lawyer, pilloried the theory of the case in what he called The Polar Bear Defence. If there were scratches on the body of a murder victim, the murderer may have been a polar bear. The lawyers would hire witnesses expert on the incidence of polar bears in Sydney, and others prepared to swear they saw a polar bear that day.

Professor David Luban wrote in Lawyers and Justice:

… the adversarial lawyer reasons backward to what the facts must be, dignifies this fantasy by labelling it the ‘theory of the case’, and then cobbles together whatever evidence can be offered to support this ‘theory’. For example, a ‘large, reputable law firm’ defended an insurance company against a claim concerning a woman who drowned in her swimming pool. The lawyers decided that if the death was a suicide, their client wouldn’t have to pay … Suicide became their ‘theory of the case’ … to the consternation of their bewildered and appalled adversaries.

Lawyer/reporter Jeffrey Toobin wrote in The Run of His Life: The People v. O. J. Simpson (Touchstone 1997):

Of course, Robert Shapiro and Johnnie Cochran [Simpson’s lawyers] knew from the start what any reasonably attentive student of the murders of Nicole Brown Simpson and Ronald Lyle Goldman could see: that O. J. was guilty of killing them. Their dilemma, then, was … the most common quandary of the criminal defense attorney: what to do about a guilty client? The answer, they decided, was race … they sought to create for the client – a man they believed to be a killer – the mantle of victimhood. [They] sought to invent a separate narrative, an alternative reality, for the events of June 12, 1994. This fictional version … posited that Simpson was the victim of a wide-ranging conspiracy of racist law enforcement officials who had fabricated and planted evidence in order to frame him for a crime he did not commit.

The SOD Defence is that some other dude did it. Toobin noted that another member of the Simpson team, Professor Gerald Uelmen, of the Santa Clara law school, said the murder ‘bears all the hallmarks of a drug-related homicide, in which the frequency of multiple victims, the use of knives, the use of stealth, is much more frequent than it is in the case of domestic violence’. Toobin commented: ‘As Uelmen uttered the words “drug-related”, there was an audible intake of breath in the courtroom. The suggestion was (and remains) preposterous, even on Uelmen’s own terms …’

In June 2008, an Australian lawyer, Robin Tampoe, admitted that he concocted a defence for Schapelle Corby, who was found guilty of importing 4.5 kilograms of marijuana into Bali, Indonesia, in 2005, and got 20 years. Tampoe said the defence, that corrupt airport baggage handlers in Australia put the marijuana in her bag, was false. Miss Corby’s Indonesia lawyer, Erwin Siregar, described Tampoe’s statement as ‘a crazy admission’. In June 2009, a Queensland judge, Roslyn Atkinson, struck Tampoe off for bringing the profession into disrepute. She said:

A person acting as a criminal defence legal practitioner cannot under any circumstances invent facts or invent a defence. To say such a thing is scandalous and is likely to cause the public to lose confidence in not only the legal profession but in the criminal justice system, because it suggests that in response to a criminal charge what one should do is find a legal practitioner who will make up a defence for the alleged offender. Nothing could be further from the truth.

7. The abuse excuse

Lyle and Erik Menendez, of Hollywood, murdered their parents to get their money in 1989. They had the same trial, but with separate juries, in 1993. Leslie Abramson, for Erik, claimed years of verbal and physical abuse by their father, Jose, drove them to do what they did.

A psychiatrist said Erik’s brain had been ‘re-wired by fear’. She supported this claim with her research on snails. Both sets of jurors were deadlocked; some jurors thought they were guilty of manslaughter only.

At the second trial in 1996, the judge ruled much of the abuse evidence irrelevant but admitted a claim that Erik suffered from Post Traumatic Stress Disorder which prevented him from formulating thoughts necessary for premeditated murder.

Both were found guilty of murder and sentenced to life without parole.

8. The self-abuse excuse

Noa Nadruku, of Canberra, Australia, was charged with assault on three women in 1997. His defence was that he could not form a guilty intent because he had drunk 16 pints of beer and half a bottle of wine in 11 hours.

A magistrate found him not guilty.

9. The lecture

When the lawyers have decided on the theory of the case, they may coach the accused – subtly or otherwise – in case they decide to let him give evidence.

Judge (1957-59) John Voelker (1903-91), of the Michigan Supreme Court, published Anatomy of Murder in 1958 under the pen name Robert Traver. It was inspired by a case in which Voelker was the defence lawyer. Fred D. Shapiro quoted from the book in OxfordLQ: :

The Lecture is an ancient device that lawyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching … ‘Who, me? I didn’t tell him what to say,’ the lawyer can later comfort himself. ‘I merely explained the law, see.’

Judge Voelker showed how a lawyer, Paul Biegler, helped his client fabricate a defence to a murder charge:

‘You mean, that my only possible defense in this case is to find some justification or excuse?’

My lecture was proceeding nicely to schedule. ‘You’re learning rapidly,’ I said, nodding approvingly. ‘Merely add legal justification or excuse and I’ll mark you an A.’

‘And you say that a man is not justified in killing a man who has just raped and beat up his wife?’

‘Morally, perhaps, but not legally.’

Biegler told his client a murderer might not be guilty if he was temporarily mad, and advised him to go back to his cell and think about it. The client took the hint, and got off.

One remedy is to make lawyers take an oath to tell the truth.

10. Delay

Delay helps criminals. Witnesses die or forget; prosecutors tire or calculate the costs. Peter Faris QC, former head of Australia’s National Crime Authority (NCA), told the 6th International Criminal Law Congress in Melbourne in 1996:

Excellent books have been written discussing criminal defences. In my view, the major criminal defences, in order of importance, are as follows:

1. Delay.
2. Confusion.
3. Allegations of conspiracy by the police and prosecuting authorities to conceal and tamper with the evidence, thus raising a reasonable doubt.
4. Defences set out in the excellent books.

Mervyn Wood (1917-2006), a corrupt NSW Police Commissioner (1976-79), confirmed Faris’s point about delay. He colluded with a corrupt magistrate, Murray Farquhar, to fix a drug case in 1979; was charged in 1986 with attempting to pervert justice; and committed for trial in 1989. In 1991, a Dizzo (District Court) judge, John Sinclair, permanently stayed the perversion charge because of the delay (seven years) in charging Wood.

Lawyers supervised the (Australian) NCA’s investigations into suspected organised crime. A case concerning John Dorman Elliott and others (see below: Concealing evidence said to have been improperly gained) began in 1989; charges alleging theft of $66 million were laid in 1993; the case collapsed in 1996 when the judge wrongly concealed the evidence of some 130 witnesses.

The NCA lawyers’ dismay was recorded by its oversight body, the Parliamentary Joint Committee (PJC), in its Third Evaluation of the NCA (1998). The PJC reported that Greg Melick, a barrister member of the NCA, said:

… a person with enough funds and properly advised could probably delay the Authority’s investigative processes by some three to four years before they could actually be forced to answer relevant questions before a hearing … three and a half years of litigation, in which they [Elliott et al] did not win one stage but they delayed the matters by a substantial amount of time … anybody who can afford it can probably avoid the consequences because, if you have got the money – and it takes millions of dollars – you can protract the system for as long as you like.