This is the 23nd 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

11. Plea-bargaining

Professor John Langbein wrote in The Historical Origins of the Privilege Against Self-Incrimination at Common Law (Michigan Law Review, March 1994): “ … when our criminal procedural system crumbled in the twentieth century under caseload pressures, our response was to dispense with trial altogether, transforming the pre-trial process into our no-trial plea-bargaining system.”

Caseloads are a factor, but plea-bargaining is an admission that the system’s anti-truth devices make it difficult to get convictions. Prosecutors offer suspects a no-risk bargain: accept a large fine or a few years in prison against the possibility of going to prison forever. Plea-bargaining works two ways. It can put the innocent in prison and give the guilty a much lighter sentence and thus deprive victims and the community of justice.

Judges (and jurors) in France and Germany do not accept guilty pleas. They have to find the truth for themselves, and they know a guilty plea can be false because of torture, coercion or to protect others.

12. Preliminary (committal) hearings

Preliminary hearings presume that prosecutors are incompetent. A minor judicial officer has to decide whether the prosecution’s evidence is sufficient to commit an accused for trial. Apart from making more money for defence lawyers and depleting prosecution budgets, preliminary hearings are all one way: only the prosecution case has to be revealed. This helps defence lawyers to fabricate a defence, to ‘destroy’ key witnesses out of the sight of jurors, and to deter them from giving evidence at the trial.

Ottawa lawyer Michael Edelson outlined his approach to sex assault cases at a 1988 seminar for lawyers. Speaking of ‘whacking the complainant’ at preliminary hearings, Edelson said: ‘You’ve got to attack the complainant hard with all you’ve got so that he or she will say: “I’m not coming back in front of 12 good citizens to repeat this bullshit story that I’ve just told the judge”.’

Peter Faris QC told an international criminal law congress in 1996: ‘There is no justification for the delay and cost of trying issues twice. Committals should be abolished.’ The truth-seeking system does not have preliminary hearings.

13. Separate trials

Several defendants in the same case may get separate trials if some evidence against one is different from that against others. Also, a person charged with several similar crimes can get a separate trial on each charge because the evidence of all the victims might reveal a devastating pattern (see below Concealing a pattern of criminal behaviour). Natasha Wallace reported in The Sydney Morning Herald of 2 July 2004:

Brother John Maguire has faced eight [separate] trials on child sex abuse charges. Eight times, including yesterday, he has been acquitted, with none of the jurors ever told of the other allegations against him … Jurors at each trial, before Judge Megan Latham at the NSW District Court since last November, were therefore unaware of the extensive allegations against Brother Maguire … ‘It becomes one person’s word against another’, one complainant said yesterday.

The children may have wondered what Judge Latham thought as she sat passively through the eight trials.

14. Only a bit mad: diminished responsibility

In most crimes, the prosecution has to prove both a wrongful act (actus reus) and a wrongful intent (mens rea). It is not a crime to think about murder, nor is it a crime to commit murder if you were mad at the time. The latter derives from a House of Lords opinion in M’Naghten (1843).

Diminished responsibility is a relatively recent wrinkle on M’Naghten. In the 1960s, judges began to accept lawyers’ arguments that if the accused was only a little bit mad, he might be only a little bit guilty. Trials tended to become contests between psychiatrists.

The Hon Burton S. Katz, no longer a judge, wrote in Justice Overruled: Unmasking the Criminal Justice System (Warner, 1997):

If a man commits a crime, I believe that he is responsible for his crime – not his mommy and daddy, not racism, not an abusive spouse, not recovered memories of childhood abuse, not his potty training. He alone is responsible. He made the decision to murder. Then he murdered. He made the decision to rape. Then he raped. Until we firmly re-establish that principle in our courts, our justice system will cease to have much meaning.

Three cases in point:

Twinkies. Dan White was dismissed from the San Francisco public service in 1978. He got a gun; evaded metal detectors by climbing through a City Hall basement window; evaded Mayor George Moscone’s bodyguards; killed Moscone with four shots; reloaded; went to the office of another official, Harvey Milk, and killed him with five shots.

White was charged with first degree (premeditated) murder. It was argued on his behalf that his new addiction to junk food, including Twinkies, a confection with a high sugar content, confirmed that losing his job had depressed him, and that depression had prevented premeditation. Dr. Martin Blinder, a psychiatrist, said excessive sugar could have aggravated a chemical imbalance in his brain. The jury found White not guilty of premeditated murder, but guilty of manslaughter. He got six years.

Bobbitt. Lorena Bobbitt got a kitchen knife and sliced off half her husband’s penis while he was in a drunken slumber in 1993. In 1994, a jury found her not guilty of malicious wounding on the ground that her temporary insanity gave her an irresistible impulse to wound.

Anu Singh. Helen Garner reported in Joe Cinque’s Consolation: A True Story of Death, Grief and the Law (Picador, 2004) that Anu Singh, 25, a self-obsessed drama queen and final year law student in Canberra, Australia, got advice on how to inject an overdose of heroin in September 1997.

During the night of Saturday, 25 October 1997, Singh put a knockout drug, Rohypnol, in the coffee of her amiable boy friend, Joe Cinque, 26, a civil engineer. At about 3 am on the Sunday, Singh injected heroin into Cinque’s body, but he failed to die. She went out, bought more heroin and injected him again at about 10 am. He died about 2 pm. She was charged with murder.

In April 1998, the trial judge, Ken Crispin, sitting without a jury, agreed with psychiatrists who said Singh’s responsibility was diminished because she was somewhat mentally disturbed. He found she was not guilty of murder but guilty of manslaughter. He gave her a minimum of four years, backdated to the date of her incarceration, October 26, 1997.

Sing passed her law finals in prison, and was out in October 2001. A glittering career was predicted. Adversarial cross-examination is the Theatre of Cruelty. The cruellest action is robbing a person of his life.

Garner noted ‘the ugly divide between morals and the law’. She asked whether ‘the moral failure of the law’ gives judges an ‘icy chill’? The answer is no. If the system’s lack of morality chilled judges, they would do something about it.

*15. Concealing client-lawyer conspiracy

Raymond Chandler’s Philip Marlowe said in The Long Goodbye (1953): ‘How long do you think the big-shot mobsters would last if the lawyers didn’t show them how to operate?’

The privilege of client-lawyer secrecy is a major plank of Professor Benjamin Barton’s theory that judges favour lawyers’ interests. Judges say the privilege helps the administration of justice. That confirms that common lawyers have a peculiar idea of justice; the privilege protects the guilty and does not protect the innocent.

The privilege resided in the lawyer, not the client when it first appeared in Berd v Lovelace (1577). Perhaps indulging a taste for irony, Justice Michael Kirby, said in The Commissioner, Australian Federal Police and Others v Propend Finance Pty Ltd and Others (Australian High Court, 1997): ‘Early cases suggested that [the privilege] belonged to a solicitor and derived from his honour as a “professional man and a gentleman”.’

A gentleman presumably would not waive the privilege and disclose details of his criminal conspiracy with a client, but rich criminals got a nasty surprise in 1743 when, as noted in the section on ethics, James Giffard, a lawyer but no gentleman, revealed that he conspired with an organised criminal to procure a judicial killing.

Justice Sir Francis Buller (1746-1800) did the decent thing. In Wilson v Rastall (1792) he decided earlier judges were wrong, and that the privilege belongs to the client, not the lawyer. Rich criminals could now conspire with lawyers safe in the knowledge that only criminals could waive the privilege.

In 1827, Jeremy Bentham, whose clothed skeleton still gazes amiably at passers-by in the seat of learning he founded, University College London, formulated an unanswerable argument: if the client is innocent, the lawyer has no guilty secret to betray; if guilty, no injustice flows from its absence. He said the privilege thus had no legitimate purpose, and should be abolished.

Henry Brougham, who had successfully blackmailed George IV in 1820, was Lord Chancellor 1830-33. Lord Brougham ruled that any legal transaction might lead to litigation; all transactions involving lawyers must therefore be secret.

Justice Sir James Knight-Bruce (1791-1866) made an argument for secrecy in Pearse v Pearse (1846). He begins with a lie; descends into puerility and finally invokes Othello to claim that truth does not matter. He said:

The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice, [but] surely the meanness and the mischief of prying into a man’s confidential consultations with his legal adviser … are too great a price to pay for truth … Truth, like other good things, may be loved unwisely, may be pursued too keenly, may cost too much.

Professor David Luban says that the privilege cannot exist if lawyers are in business. It is clear that the common law has been a business since it began in the 12th century.

Richard Ackland, proprietor of Justinian, noted the reality in The Sydney Morning Herald of 2 April 2004: “The truth is that companies of various shapes and sizes have for many years wheeled barrowloads of documents through the portals of the large law firms on the pretext of getting legal advice, but really hoping to achieve an ambit privilege from disclosing all sorts of unattractive details of their day-by-day conduct.”

As noted, the courts have been trying to shut the Press up since Defoe invented modern journalism in 1704. The super-injunction – an order to conceal the existence of an injunction to conceal something – is merely the latest wrinkle.

Carter-Ruck, a London law firm, obtained super-injunctions in 2009 on behalf of a shipping company Trafigura, to: 1) Prevent The Guardian from publishing details of data covered by client-lawyer secrecy; 2) Prevent disclosure that an injunction had been obtained; 3) Prevent disclosure that a member of Parliament had put a question about the matter on the notice paper. The Economist reported the upshot:

This week a national newspaper ran a fascinating story about absolutely nothing. The Guardian reported on its front page on October 13th that a question had been tabled by an MP in Parliament, but that the newspaper could not reveal ‘who has asked the question, what the question is, which minister might answer it, or where the question is to be found’. The reason, it explained no less cryptically, was that ‘legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret’.

The super-injunction implying that judges could also shut members of Parliament up was a step too far; freedom of speech in Parliament has been absolute since 1771. Politicians were furious.

In any event, The Guardian article and an equally obscure and/or cunning Twitter by the editor, Alan Rusbridger, had led to discovery of the question on a parliamentary website. The data injuncted via client-lawyer secrecy were also published on Wikileaks and discussed on SideWiki. The horse having bolted, Carter-Ruck withdrew the injunction and super-injunctions.

A message from the Trafigura episode may be that data which judges conceal from jurors, e.g. evidence in criminal and civil actions, could likewise get into the public domain while a case is proceeding

The privilege damns itself doubly: it protects the guilty but not the possibly innocent. A judge sent me the judgment in Carter v Managing Partner Northmead Hale Davey and Others (Australian High Court 1995). He said: ‘Read this and weep.’

Louis James Carter, a Brisbane accountant was charged with fraud. He said certain documents said to be covered by the privilege would prove his innocence. Should judges opt for justice or law? The voices of infallibility went for law, by the usual narrow margin. Justices Mary Gaudron and John Toohey said Carter should get the documents. Chief Justice Sir Gerard Brennan, Justice Michael McHugh and a rather apologetic Justice Sir Billy Deane said he should not.

Carter got four years.