This is the 21th extract from Evan Whitton’s Our Corrupt Legal System, available free at netk.net.au/whittonhome.asp.
The story so far.
Justice Russell Fox said: Justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win. The common law in England (and later its colonies) has never tried to find the truth; it grew out of self-interest.
The public sector was an extortion racket when the common law began in 1166. 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 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 to a truth-based system 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. 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.
* indicates a rule which conceals evidence
Defence lawyers had a business problem when they appeared in the criminal courts in increasing numbers in the last decade of the 18th century. On my calculation, the criminal system then had only four devices which could be used to defeat the truth: the accusatorial system itself, cross-examination, inscrutable jurors, and double jeopardy.
(Blackstone’s lie about the right of silence was inserted into the US Bill of Rights in 1791, but did not become entrenched in British law until the middle of the 19th century.)
Criminal trials were nasty, brutish and short. The average was half an hour; conviction was fairly certain. Rich criminals probably tended not to waste money on lawyers.
Since 1800, however, judges have increased the anti-truth mechanisms from four to at least 24, including six rules which conceal evidence from jurors. The devices give rich criminals a good chance of avoiding the consequences, and so encourage them to pay lawyers. At least 10 were used to get a murderer, O. J. Simpson, off.
Most accused are guilty. Harvard law professor and criminal lawyer Alan Dershowitz wrote in The Best Defense that the first two rules of ‘the justice game’ (his term) are:
Rule I: Almost all criminal defendants are, in fact, guilty.
Rule II: All criminal defense lawyers, prosecutors and judges understand and believe Rule I.
We can take ‘almost all’ to mean at least 90-95%. Hence the observation by US lawyer Maurice Nadjari. ‘You can’t make a living defending innocent men.’ In effect, defence lawyers (and judges sitting alone) are almost invariably accessories after the fact.
Justice is fairness. Judges have unfairly skewed the system in favour of defence lawyers and their criminal clients, and against victims, detectives, prosecutors, witnesses, jurors, and the public. Professor Dershowitz wrote in The Best Defense:
The American criminal justice system is corrupt to its core: it depends on a pervasive dishonesty by its participants … The corruption lies not so much in the results of the justice system as in its processes …’ (His emphasis.)
Dershowitz was quoted in the U.S. News & World Report of 9 August 1982 as saying:
The defendant wants to hide the truth because he’s generally guilty. The defense attorney’s job is to make sure the jury does not arrive at that truth. The prosecution wants to make sure the process by which the evidence was obtained is not truthfully presented, because, as often as not, that process will raise questions.
Citizens are entitled to expect the media to report what is concealed from their representatives, the jurors, at the end of important trials. The splash in The (Brisbane) Courier-Mail on the day after the verdict in the corruption trial of Queensland police chief Sir Terence Lewis in 1991 (see below: Concealing any or all evidence) was WHAT THE JURY DID NOT HEAR, by Jason Gagliardi.
The Editor, Desmond Houghton, then instructed his court reporters to stay in court during legal argument in major trials and note and later report the concealed evidence.
The trial of John Thomas Sweeney (b. 1956) on a charge of first degree (premeditated) murder illustrates some of the anti-truth devices noted below. After an actress, Dominique Dunne (1956-82), left Sweeney, he strangled her in November 1982. The medical evidence at his 1983 trial was that it takes a strangler at least four minutes to kill his victim.
Among the evidence concealed by Judge Burton Katz was evidence by a Lillian Pierce that Sweeney had assaulted her 10 times during a two-year relationship, and evidence by the victim’s mother, Ellen Dunne, that Dominique had come to her in hysterics when Sweeney first beat her.
Katz concealed that evidence on the ground that the ‘prejudicial effect outweighed the probative value.’ (See below The Christie discretion.) He also concealed all the victim’s statements in the last five weeks of her life to her agent, fellow actors, and friends that she feared Sweeney. (See below: Concealing second-hand evidence.)
The case shows how lawyers and judges are prey to what George Orwell called ‘doublethink’, holding two contradictory beliefs at the same time, also known as ‘cognitive dissonance’. Katz knew it was premeditated murder, but at the end of the prosecution case, having felt obliged to conceal evidence of planning, he eliminated first-degree murder, and told the jury they could only consider manslaughter and second-degree murder. The jury went for voluntary manslaughter.
At the sentencing a month later, Katz said: ‘I will state on the record that I believe this is murder. I believe that Sweeney is a murderer and not a manslaughterer … This is a killing with malice.’ He gave Sweeney the maximum for manslaughter, 6 ½ years. He served 4 ½.
The procedure shocked the victim’s father, Dominick Dunne (1925-2009). His report, A father’s account of the trial of his daughter’s killer, appeared in Vanity Fair in March 1984.
The order of the anti-truth devices given here is roughly the way they appear in the pre-trial and trial processes. The rules for concealing evidence are marked with an asterisk
*1. Concealing suspects’ evidence
The privilege against self-incrimination, of which the ‘right’ of silence is a part, allows suspects to say nothing to police or jurors. At bottom, the immunity from supplying evidence derives from two lies.
The correct formulation of the duty of a suspect or accused is attributed to St. John Chrysostom (c. 347-407), a Syrian lawyer who became Archbishop of Constantinople. The suspect’s duty became canon law and was quoted by Justice Ken Marks, of the Victorian Supreme Court, in his 25,000-word article, ‘Thinking up’ about the right of silence and unsworn statements (Victorian Law Institute Journal, 1984).
The canon law was: Licet nemo tenetur seipsum prodere, tamen proditus per famam tenetur seipsum ostendere utrum possit suam innocentiam ostendere et seipsum purgare. That is: ‘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.’
Justice Marks noted that in 1568 Sir James Dyer, Chief Judge of the Court of Common Pleas, omitted everything except ‘no one is compelled to accuse himself’ (nemo tenetur seipsum prodere), and freed a suspect on that basis.
A lawyer, Rick McDonnell, drew Justice Marks’s paper to my attention in 1997, 13 years after it appeared. When I asked the judge for a copy, he said I was only the second person to speak to him about it.
Judges ignored Dyer’s lie for 200 years. Yale professor John Langbein’s research (published in 1994) on the period 1660-1800 showed there was not ‘a single case in which an accused refused to speak on asserted grounds of privilege, or in which he makes the least allusion to a privilege against self-incrimination’.
However, Blackstone wrote in his Commentaries (1765-69): ‘At the common law, nemo tenebatur prodere seipsum.’ (No-one was compelled to accuse himself.). That was not the common law at all, but James Madison fatally entombed it in the US Constitution as the Fifth Amendment in 1791.
Justice Michael McHugh referred to The Privilege Against Self-Incrimination: Its Origins and Development (University of Chicago Press, 1997), in [Joseph] Azzopardi v The Queen (Australian High Court, 2001). McHugh said the book, by Dick Helmholz, Charles Gray, John Langbein, Eben Moglen Henry Smith, and Albert Alschuler, demonstrated that the immunity ‘did not become firmly established as a principle of the criminal law until the mid-19th century or later’.
Jeremy Bentham observed in 1827 that the privilege is irrational and was perpetuated only by those ‘duped and corrupted by English lawyers’, e.g. Blackstone. The dupes, willing or otherwise, included Sir Harry Gibbs (1917-2005), who famously said in 1974 that a profit was a loss, and became Australia’s Chief Justice in 1981.
Gibbs defined the privilege in Sorby v The Commonwealth (1983). Quoting Lamb v Munster (1882), Gibbs said a suspect cannot be compelled ‘to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal”.’
The privilege tends to confirm Brett Dawson’s view that criminal law is a get-the-guilty-off game. Cambridge law professor Glanville Williams said in The Proof of Guilt: A Study of the English Criminal Trial (Stevens, 1963):
… immunity from being questioned is a rule which by its nature can protect the guilty only. It is not a rule that may operate to acquit some guilty for fear of convicting some innocent.
US Chief Justice (1953-69) Earl Warren (1891-1974) thus spoke truer than he knew when he said in Miranda v Arizona (1966) that the privilege is ‘the essential mainstay of our adversary system’.
Alun Jones QC said: ‘I am told that over half of all defendants in America decline to give evidence.’ Law lecturer Dave Dixon, of the University of NSW, said in 1997 that about half those who remained silent are convicted. Blackstone’s lie is thus one of his great legacies to criminals and their lawyers.
Justice Lionel Murphy, of the Australian High Court, was charged with perverting justice. He gave evidence, was seen to be shifty and evasive and was found guilty. He got a retrial on a technicality, refused to give evidence, and got off in 1986.
O. J. Simpson got off murder charges largely because of race, but the ‘right’ of silence helped. He had to give evidence at his civil trial in 1996, and was seen to be shifty, evasive and contradictory. He was found responsible for the murders.
As a matter of human dignity, suspects can refuse to talk but silence risks adverse inference. They would probably demonstrate their innocence if they could, but judges in the second half of the 20th century compounded Blackstone’s lie: they gave silent suspects immunity from adverse inference.
Justice Geoffrey Davies, of the Queensland Court of Appeal, noted that immunity from inference offends reality and common sense. He wrote in The Prohibition Against Adverse Inferences from Silence: A Rule without a Reason? (Part 1, Australian Law Journal, 2000):
An obvious example is a parent asking a child, cricket bat in hand, whether he hit the ball through the broken window. Could it be seriously suggested that the parent should never draw an adverse inference from the child’s refusal to answer? … it suits the view of many, including most defence lawyers, that nothing should change.
The Australian High Court edged towards removing immunity from adverse inferences in Weissensteiner v Her Majesty (1993), and British legislators abolished it in 1994, but Australian legal bureaucrats largely restored the immunity in the Commonwealth and NSW Evidence Acts of 1995. Section 20 (2) of the NSW Act says judges – but not prosecutors – can comment on an accused’s refusal to speak, but cannot suggest it was because he was guilty.
2. Prove it!
As noted in the Origins section, the criminal adversary system is a quite recent and lawyer-run version of the anti-truth accusatorial (Prove it!) system that came out of the Dark Ages.
In the new version, prosecutors are required to prove a case after evidence has been concealed. That reaches its logical conclusion when a judge conceals ALL the evidence and then invites a bemused prosecutor to prove his case. That happened in an Australian case which concerned an alleged white collar theft of $66 million. (See below. Concealing evidence said to have been improperly gained. )
Three New York detectives, Gescard Isnora, Michael Oliver and Marc Cooper, fired 50 shots into an unarmed man, Sean Bell, in November 2006. They were charged with manslaughter. An ounce of evidence is said to be worth a pound of demeanour. In April 2008, Judge Arthur Cooperman, 74, sitting without a jury, rejected the evidence of all 50 prosecutions witnesses, partly, he said, because of their demeanour. The detectives refused to give evidence. Judge Cooperman was thus not able to assess their demeanour. He found them not guilty.
3. Legal aid
A British (Labour) Attorney-General, Sir Hartley (‘We are the masters [now]’) Shawcross (1902-2003) invented legal aid in 1949. Arthur Marriott QC, of London, told a Sydney audience in October 2005: ‘Perhaps the main impact of the [Legal Aid] Act was the extraordinary growth in the numbers of practising lawyers.’
Legal aid is effectively a fraud on the public and taxpayers in most criminal cases because almost all accused are guilty. Accused are entitled to a defence, but legal aid lawyers should not be allowed to use public moneys to defeat truth and pervert justice.
At least in two Australian states, there is a gulf between the budgets for legal aid and the Director of Public Prosecutions (DPP).
Tony Koch reported in The Australian (17 May, 2008) that the Queensland DPP’s budget was less than a third of legal aid from state and federal sources: the DPP got about $30 million to try to put criminals in prison; trial lawyers got $101.3 million a year to try to keep them out.
In New South Wales, the DPP’s budget for 2007-08 was $96 million; the legal aid budget was $214 million. In 2009, DPP Nicholas Cowdery QC was obliged to drop some prosecutions, and could not provide lawyers for some courts.