This is the 31st extract from Our Corrupt Legal System, by Evan Whitton (@EvanWhitton1) available free at netk.net.au/whittonhome.asp.
The story so far
Justice means fairness. Fairness and morality require a search for the truth, otherwise the wrong side may win, and justice will be perverted.
The common law in England and its colonies has never tried to find the truth, and judges have never been trained as judges, as they are in Europe; they are trial lawyers trained in sophistry, a technique of lying, elevated to the bench.
Trial lawyers have been described as serial liars because they try to persuade jurors to believe things the lawyers believe to be false.
A racket is an illegal enterprise. Yale law professor Fred Rodell said: “The legal trade, in short, is nothing but a high-class racket.”
The common law began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel to protect their interests.
By 1350, the cartel had all the bases covered: lawyer-politicians had effective control of the legislature. They still have.
Over the centuries, the cartel developed a string of other rackets: the adversary system, pleadings, disputed wills, concealing evidence, discovery, negligence etc, etc.
The adversary system began in 1460, when judges began to let lawyers take over control of civil evidence. This enabled serial liars to question witnesses, prolong the process, and increase their fees exponentially.
Lawyers began to defend criminals in 1695. Since 1800, judges have biased criminal law in favour of criminals. They have made rules which conceal evidence, tend to pervert justice, and give rich criminals a better than even chance of getting off. The rules were also applied to civil law.
The Productivity Commission has a reference to research and recommend how to achieve “faster, simpler, fairer” civil justice. In a second submission to the Commission, I explore a question: Are judges and lawyers guilty of wilful blindness to the system’s grave defects? See http://netk.net.au/whitton/whitton4.pdf.
N. The remedy
Professor David Luban said: ‘The O. J. Simpson trial has persuaded most Americans that the adversary system is at best grotesque.’ This book has sought to identify causes and consequences of the grotesquerie.
Causes. A cartel of lawyers and judges runs the system as a business; the system does not seek the truth; trial lawyers, i.e. trained liars, are in charge of evidence; judges are untrained former trial lawyers.
Consequences. Too many innocent people go to prison; too many criminals get off; civil hearings take too long.
The investigative system is better in every respect. There is no cartel; judges trained separately from lawyers control evidence and search for the truth; lawyers’ role is minimal.
That is not to say the system is perfect. In France, for instance, the juge d’istruction (investigating judge) can detain suspects for lengthy periods, ostensibly for suspects to be available for further questioning as new evidence comes in, but detention can be seen as a softening-up hangover from the old torture days.
Nor would it be helpful to borrow from the new Italian system. That system has tilted towards the adversary system to help members of the Sicilian Mafia escape justice. Alexander Stille explained how it happened in Excellent Cadavers: The Mafia and the Death of the First Italian Republic (Pantheon, 1995).
The Sicilian Mafia was virtually the criminal wing of Giulio Andreotti’s Christian Democrat party. In February 1986, Giovanni Falcone, an investigating judge, put 475 Mafiosi on trial in Palermo.
At national elections in June 1987, the Mafia voted for parties other than Andreotti’s on two conditions: investigating judges were to be emasculated and the law changed. This punished Andreotti’s party for failing to stop the investigation and the maxi-trial and gained more protection for the Mob.
In December 1987, 344 (72%) of the Mafiosi were found guilty. In 1988, the pool of Mafia-investigating judges was dismantled, and the Parliament passed changes to the criminal code which limited the powers of remaining investigating judges.
On 20 September 1988, a tap on a telephone in the Cafe Giardano in Brooklyn recorded a conversation between a heroin-dealer, Joe Gambino, and an anonymous hood just back from Palermo. The dialogue, in Sicilian, indicates that the Mafia sees the function of the US adversary system as being to anally penetrate police:
Hood: Now they’ve approved the new law, now they can’t prosecute as they did in the past … They can’t arrest people when they want. Before they do, they have to have solid proof, they have to convict first and arrest later.
Gambino: Oh, so it’s like here, in America.
Hood: No, it’s better, much better. Now these bastards, the magistrates and cops, can’t even dream of arresting anyone the way they do now.
Gambino: The cops will take it up the ass. And [Falcone] won’t be able to do anything either? … They’ll all take it up the ass.
Hood: Yeah, they’ll take it in the ass.
Falcone and Judge Paolo Borsellino knew that seriously investigating the Mafia would result in their murders, and they were assassinated in 1992. Their heroism is a reproach to common law academics, prosecutors and judges who are silent in the face of their system’s protection of criminals. Procedures in Germany and France at least provide the basis for a truth-seeking system.
1. German and French civil procedure
Modern German civil procedure is similar to that used in Britain before lawyers began to get control of the process in the 15th century. The following relies largely on Professor John Langbein’s The German Advantage in Civil Procedure (1985).
Litigation in Germany begins with a lawyer making a complaint which lays out the key facts, a legal theory, and asks for a remedy. Supporting documents are attached or indicated, and witnesses identified. The defendant does the same. Discovery is virtually non-existent; the judge examines the material and sends for public records and any other documents he needs.
He now has the beginning of a dossier. All subsequent evidence-gathering and submissions go into the dossier. It is continuously open to inspection by the lawyers.
US trial lawyers coach witnesses relentlessly. German lawyers rarely speak to witnesses outside the court. To do so is a serious ethical breach and self-defeating: judges doubt the reliability of witnesses who have discussed the case with lawyers or have been seen consorting with them.
There are no adversary system ‘saxophones’, i.e. ‘expert’ witnesses on whom lawyers who hire them play tunes. If there is a technical problem, the judge, in consultation with the lawyers, selects an expert or experts and defines their role.
The judge sits without a jury and does not conceal evidence from himself. He, rather than lawyers, mainly gathers and evaluates evidence over a series of hearings. There is no distinction between pre-trial and trial, between discovering evidence and presenting it.
The German approach is called the ‘conference method’; the tone is that of a routine business meeting. This lessens tension and theatrics and encourages compromise and settlement. The fact that the loser pays encourages settlement before judgment.
The judge may be able to suggest compromise and resolution in discussions with the lawyers and their clients. If the parties persist, the judge acts as examiner-in-chief of the witnesses.
Lawyers for either party can then ask additional questions, but Professor Langbein says that in Germany ‘counsel are not prominent as examiners’. He says the judge ranges over the entire case, ‘constantly looking for the jugular – for the issue of law or fact that might dispose of the case’.
Professor Langbein notes that in the adversary system, lawyers are paid by the hour and court reporters by the page. The German incentive is the opposite: evidence is rarely recorded verbatim. The judge periodically pauses to dictate a summary into the dossier; lawyers can suggest improvements. The summaries are useful for refreshers at later hearings, and for the written judgment and the appeal court.
The lawyers can comment orally or in writing when the judge has heard witnesses or procured other evidence, and can suggest further proofs or advance legal theories. Professor Langbein says: ‘Thus, non-adversarial proof-taking alternates with adversarial dialogue across as many hearings as necessary. The process merges the investigatory function of our pre-trial discovery and evidence-presenting function of our trial.’
Justice Russell Fox wrote in Justice in the 21st Century: ‘In a civil action [in the adversary system] a large part of the cost is incurred in the pre-trial phase. This comprises pleadings, court directions, compulsory conferences, discovery and interrogatories, and other matters as the case requires … The whole operation is costly to the parties and to the government as well.’
He contrasted that with a civil matter in France, where, he said: ‘ … evidence is customarily assembled in written form by one of a court of three judges, and he or she reports to the court on it.
‘The practice is for the reporting judge to accept the evidence presented by the parties and to do little, if any, separate investigation himself. When a witness is called, he is first examined by the President, and counsel for the parties may examine later (‘cross-examination’ is not a term known to continental jurisprudence.)
‘Few witnesses are called to give oral evidence. Hearings (the correct term, there being no ‘trials’) are without juries and are not concentrated, continuous affairs. The first hearing may occupy no more than one hour, whereupon there can be an adjournment, so that one party or the other may produce further evidence, or for a related purpose.
‘The next hearing may be the final one, and commonly does not last longer than an hour of so. The point for present purposes is that the whole case may be disposed of in less than a day overall; relatively few occupy much more.
‘In other continental countries, and in Japan, the position is much the same. This result is greatly helped by the fact that France, in common with other civil law countries, does not have any exclusionary rules of evidence.’
After the lawyers and the reporting judge have done the preliminary work, the French system can then dispose of a civil case in a few hours. Three Rivers District Council v Bank of England took 10 years. The action, brought by liquidators of the Bank of Credit and Commerce International (BCCI), reminded some of Jarndyce v Jarndyce.
BCCI, founded in Pakistan in 1973, was involved in bribing, money laundering, supporting terrorism, arms trafficking, selling nuclear technology, tax evasion, smuggling, illegally buying banks and land, and illegal immigration. When it was closed in 1991, at least US$13 billion of assets had disappeared.
In 1995, the liquidators of BCCI claimed £850 million in compensation from the Bank of England for alleged errors and omissions as a regulatory body. The trial was delayed for nine years by arguments over discovery in the Court to Appeal (twice) and in the House of Lords (once).
The trial began in January 2004. The opening speech by Gordon Pollock QC, for Three Rivers, took 80 sitting days; the opening speech by Nicholas Stadlen QC, for the Bank of England, took 119 sitting days.
Stadlen’s speech, which ended in May 2005, was thought to be the longest in British legal history, but Jennens was safe; the liquidators dropped the action in November 2005.
The time and money wasted on pleadings and discovery tends to exclude from civil justice most except wealthy corporations and the rich. The rapidity of European civil litigation gives the poor and middling at least some access.
2. Criminal procedure in France
French pre-trial filters (see below, Two systems compared) show how the innocent can be protected without concealing evidence. Moreover, police are less likely to fabricate because they know evidence will not be hidden, and because, in serious cases, they are supervised by a trained investigating judge (juge d’instruction).
Law professor Gordon van Kessel, of UC Hastings College of the Law, San Francisco, observed in Adversary Excesses in the American Criminal Trial (Notre Dame Law Review, 1992): ‘It is arguable that by allowing the defendants full discovery of the state’s case, an opportunity to give unsworn narrative testimony, and a right to written reasons supporting the fact-finder’s decision, the non-adversary system shows greater respect for the accused.’
At the pre-trial stage, an overworked juge d’instruction reconstructs the crime, stages a confrontation between suspect and victim or relatives, and builds up a dossier of all relevant evidence for and against the suspect. Despite a right of silence, the suspect generally accepts that he is a proper source of information.
The dossier is made available to the suspect’s lawyer in case he can show the truth lies elsewhere. If the lawyer can show there is considerable doubt, that is the end of it.
At the trial, the jurors, if any, sit on the bench with the judge or judges. Guilty pleas are not accepted; judge and jurors are obliged to find the truth for themselves.
The accused in not on oath. His life, character and previous convictions are presented. He has a right of silence, but adverse inferences can be drawn if he refuses to give evidence.
The presiding judge uses the dossier to question as many witnesses as necessary for ‘the manifestation of the truth’. Witnesses can tell the whole truth by giving their evidence as a narrative rather than by Yes-No answers.
Lawyers for prosecution and defence can question witnesses but in some jurisdictions they are not allowed to cross-examine directly lest they pollute the truth; they can ask questions only through the judge.
Common law jurors find the formula, beyond reasonable doubt, negative and confusing; French jurors understand their formula. Bron McKillop, an Australian authority on the investigative system, says there is probably no real difference between ‘beyond reasonable doubt’ and the European ‘conviction of guilt’, what the French call conviction intime and Germans call freie uberzeugung.
A doubt must be resolved in favour of the accused. Judge(s) and jurors reach the verdict and penalty together and give their reasons. The results automatically go to appeal courts for review. Prosecution as well as defence can formally appeal against not guilty verdicts; there is no double-jeopardy rule.
The dossier helps the appellate court to scrutinise the lower court’s reasoning, application of the law and findings of fact. A flaw is that witnesses’ trial evidence is not reviewed because it is not recorded in the dossier.
Bron McKillop notes (Review of Convictions after Jury Trials: The New French Jury Court of Appeal, The Sydney Law Review, Lawbook Co., June 2006) that since 2001 a jury verdict of guilty in France can be appealed to a court of appeal consisting of three judges and 12 lay jurors.
He wrote of this logical development: ‘This may seem strange to anglophones but it shows a faith in the jury court as the ultimate arbiter of guilt in serious criminal cases, without the control of judicial review.’
3. The two systems compared
Professor David Luban was plainly correct in saying that every argument for the adversary system fails, but he was not correct in saying that change is not worthwhile because ‘the available alternatives are not demonstrably better’.
A pro-truth and hence moral system in which trained judges gather and present facts must be superior to an anti-truth and hence immoral system in which trained liars gather and present ‘facts’.
The adversary system is inaccurate for innocent and guilty alike, but Justice James Burchett, of the Australian Federal Court, said in 1996: ‘My reading suggests that even those comparative lawyers who are critical of the French criminal law do accept that French courts are fair, and that the verdict reached is generally accurate.’
The superiority of the investigative system can be demonstrated mathematically in terms of accuracy and cost.
First, accuracy for the innocent. David Rose noted in In the Name of the Law: The Collapse of Criminal Justice that one of the first acts of the 1991-93 Runciman inquiry into the British criminal system ‘was to order research into two nearby jurisdictions which broadly follow inquisitorial principles, France and Germany.’
That research resulted in A Report on the Administration of Criminal Justice in the Pre-Trial phase in France and Germany, by Professor Leonard Leigh and Lucia Zedner (Her Majesty’s Stationery Office, 1992).
Rose reported: ‘[They] reached several immediately striking conclusions: First, they found that in neither country was it likely that miscarriages of justice such as the Guildford or Birmingham cases would occur.
‘Second, in contrast to the stratified and often vexed relationship between the different actors in the criminal process in England, on the continent this relationship was marked by ‘a high degree of confidence, and of co-operation and mutual trust’.
‘Finally, public confidence in both systems remained high in their respective countries.’
Further, Professor Leigh and Lucia Zedner said: ‘The low acquittal rates in France and Germany and the apparent paucity of cases of unjust convictions are the product of the care taken in the initial stages of the criminal process.
‘A series of pre-trial filters also ensures that the innocent are rarely charged, let alone convicted …
‘At the end of the instruction [investigation] the accused’s lawyer will be given an opportunity to examine the dossier and to make representations before the prosecutor decides whether or not the matter should proceed further.
‘If the prosecutor, on receipt of the dossier from the examining magistrate, believes that the case should proceed, he will transfer the file to the chambre d’accusation.
‘This court then assesses the correctness of the decision and thus serves as a further filter in the system. It may order that the case proceed, that it be dropped, that the charges be re-assessed …
‘This court also sits in appeal on refusals of pre-trial liberty and on refusals by the examining magistrate to order investigations into matters suggested by the defence.’
Doubtful cases have thus been filtered out at the pre-trial stage, but French and German courts err on the side of caution. They give a further benefit of the doubt to 5% of those who face court.
Japanese and Indonesian courts may seem not cautious enough; they give the benefit of the doubt to only 1% of those who get to court.
Second, accuracy for victims. As Professor Alan Dershowitz suggests, 95% of accused are guilty. French and German systems convict 95%. Our system convicts fewer than 50% – 16% in India – because of the 24 anti-truth mechanisms, including evidence concealed first by prosecutors and then by judges.
Third, cost. Justice Russell Fox says trials in the adversary system are two to 10 times longer than hearings in the investigative system.
In 1994, an International Bar Association conference in Melbourne heard a report which said a French trial costs about a third to a half that of a common law trial.
The investigative system thus convicts at least twice as many serious criminals for at least half the cost, and protects the innocent better.
The Hannes case offers a useful contrast between the length and cost of criminal trials in the two systems.
Simon Gautier Hannes was an executive director of Macquarie Bank, a Sydney investment bank. He earned about A$2 million a year in salary and bonuses. In 1996, Macquarie Bank was advising Thomas Nationwide Transport (TNT) in connection with a takeover bid by a Dutch company, KPN.
Australian banks must report cash transactions of $10,000 or more. Hannes went to 15 banks on Monday, 9 September 1996. At some banks, he got bank cheques of about $9000. At others he withdrew cash from his own accounts. He then put $90,000 into a new account at stockbrokers Ord Minnett in the name of M. Booth.
On Tuesday, 17 September, 1996, an Ord Minnett broker was instructed by telephone to invest M. Booth’s $90,000 in options over shares in TNT. When KPN’s takeover bid became public on Wednesday, 2 October, M. Booth made a profit of $2 million.
Hannes was charged with insider trading early in 1997. His defence was that he and a Mr X had set up an investment syndicate, and that Mr X had bought the TNT options without telling him.
Hannes did not give evidence and did not produce Mr X, but his lawyers argued that the prosecution could not prove beyond reasonable doubt that Mr X did not exist.
Hannes endured a committal hearing, a 55-day trial over 10 months (guilty), a successful appeal, and a 75-day re-trial over 11 months (guilty). He was fined $100,000 and sent to prison for 2 ½ years.
Elisabeth Sexton reported in The Sydney Morning Herald (20 November 2002) that Hannes had spent $3.1 million on legal costs which sometimes reached $13,000 a day. His various court outings cost taxpayers at least $2 million.
Bron McKillop, author of Anatomy of a French Murder Case (Hawkins, 1997), lectures each year in France and Germany. Given that Hannes’ trials took 130 days, I asked him how the French system would have dealt with Hannes. He replied:
‘The investigator (judge, prosecutor or police) would have interrogated Hannes and required ‘X’ and M. Booth to present themselves for interrogation, failing which the appropriate adverse inference would have been drawn by the investigator, and by the trial court.
‘All the financial transactions would have been established in detail in the dossier. These matters would have been taken on board through the dossier at the trial, confirmed by oral evidence of the material witnesses and probably also through the interrogation of Hannes by the presiding judge.
‘The trial would probably have lasted a day or so, a week tops, with Hanne almost certainly convicted.’
The case for change to some improved version of the truth-seeking system is unanswerable.
Next: How to get justice