Judges pervert …

Evan Whitton recalls a Rugby coach’s amazing fall, a US legal academic’s disclosure that judges pervert, a Law Lord’s ignorance; ditto an Australian judge, a US lawyer’s solution to the racket; and a famous editor of The Age who was wrong on everything that mattered. From Justinian 24 June, 2010

Amazing scenes! Dr Bob Moles (LLB Hons Belfast, PhD Edinburgh) has resurrected six of my dead and buried books. He tirelessly ripped out a couple of thousand pages and scanned them into a section of his website: netk.net.au/whittonhome.asp.

Dr Moles also wrote the foreword to Our Corrupt Legal System. The history section (“Rollicking” – Fin Review) shows what law schools don’t: how two legal systems are the products of mere chance:

• When the common law began in the 12th century, judges were bent and lawyers were their bagmen. The law went downhill from there.

• A giant fluke of timing gave three of Bonaparte’s generals, Desaix, Marmont and Kellermann, the victory at the battle of Chicken Marengo (1800). Except for that lucky chance, the inquisitorial system would still be rubbish.

At the launch of OCLS (Quentin Dempster MC) at Gleebooks on May 27, Dr Moles did the bizzo on perversions of justice against the innocent, and I did the bit about perversions in favour of the guilty.
Then Dr Moles sprang a surprise: he presented me with a bottle of Grant’s – “So long as you’re up, make mine a Grant’s” – in honour of something that caught his eye while he was ripping up Amazing Scenes: Adventures of a Reptile of the Press (Fairfax, 1987).

So I recounted the origin. A piece called Brock’s Boys at Twickenham mentioned that the dear old Bandicoots, after a pathetic performance against Combined Services at Aldershot, were going back to London by bus. In case of snow, I had a half-bottle Grant’s and offered the brave lads a sip.

The bottle went to the back of the bus and, despite entreaty, did not return. When the guilty man, coach Dave Brockhoff, stepped off the bus, the first part of his person which touched the pavement was his forehead.

Surveying the recumbent figure, I said unkindly: “So long as you’re down, Brock, make mine a Grant’s.”

Prof Barton names the guilty men

Professor Ben Barton, a US legal academic, put the question in a December 2007 paper: Do Judges Systematically Favor the Interests of the Legal Profession?

His answer: “Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”

To pervert justice in that way, it is sometimes necessary for judges to employ sophistry, a technique of lying. As it happens, their only training is in that commodity.

Professor Barton has since expanded his paper into a book with a title, The Lawyer-Judge Bias, which seems the wrong way round. Cambridge University Press will publish the book next year.

Noble lord’s deep and impenetrable ignorance

When I hear some shyster piously intoning “the rule of law”, I reach for my Browning; the law is not interested in truth and justice; the innocent go to prison; the rich guilty stay out.

Tom Bingham is the only beak to achieve the trifecta: Master of the Rolls, Lord Chief Justice, and Senior Law Lord. In The Rule of Law (Allen Lane, 2010), the noble lord seems unaware of the injustice wrought by judges.

It is a prospect too horrible to contemplate that Lord Bingham’s book is the product of sustained and sleepless sophistry. Let’s just say the work is the melancholy product of a deep and impenetrable ignorance.

My solution is the standard one: chuck the book out the window into the bowels of a passing garbage truck.

Truth’s a balloon

Theodore L. Kubicek JD, of Iowa, author of a book on that well-known oxymoron, Adversarial Justice (Algora, 2006), says: “During my 40 years practising law, I avoided the field of battle known as the court room as much as possible as I soon became disenchanted with the adversarial system of justice.”

Ted has an image of the truth hanging over the court in a balloon. The lawyers can use strings to pull the balloon down to reveal the truth. “Unfortunately”, Ted says, “each attorney also holds a stick [representing] obstruction, falsehood, lies, ambiguity, trickery, confusion, deceit, dishonesty, deception, or possibly perjury.”

When the balloon comes down, the lawyer threatened by the truth uses his stick to push it back up, and the judge or jury cannot make a proper decision.

Ted’s solution: get rid of the sticks, i.e. the adversary system.

Shock! Beak searches for justice

Former Justice Ken Crispin is partly known to fame for his absurd ruling on diminished responsibility in the Anu Singh-Joe Cinque case (this column February 7, 2005). Mr Crispin has now embarked on a commendable enterprise, The Quest for Justice ($35, Scribe, 2010).

Crispo is sound on the need to de-criminalise drugs, but sadly seems to think the system’s basic objective is truth. He says (p. 73): “The quest for truth has often been advanced as the fundamental objective of the adversary system.” He even quotes the dread Lord Eldon to that effect.

Where is that lorry when you need it? But if Ben Barton and Ted Kubicek know we have a dud system, why don’t Tom Bingham and Ken Crispin?

A gilded dunce

The Golden Age of Graham Perkin (Scribe, 2010) by Ben Hills, is not quite a snip at $59.95. Perkin (1929-1975), of Warracknabeal, joined The Age in 1949. He rose to news editor in 1963, assistant editor in 1964, and editor in 1966, which was the year I went to work for Sol Chandler at Melbourne Truth.

The Age then was as dreary and uninformative as any provincial bladder. Pig Iron Bob loved it.

An editor stands or falls on his judgment and circulation. Perkin missed the hanging of Ronald Ryan; he missed Dr Bert’s Wainer’s long campaign to demonstrate that bad abortion law makes bad cops; he was wrong on Malcolm Fraser’s grab for power by means other than the ballot box.

And he was wrong on the Vietnam war. When Warwick Fairfax tried to sack Vic Carroll, Max Suich and me for saying Menzies was wrong to take us into war that killed millions, Perkin said to Suich: “If you wanted to take a stand, why not do it on something important?

On circulation, Perkin presided over a modest but useful increase, from 180,000 to 220,000, in 10 years. By contrast, Chandler lifted Truth’s circulation from 220,000 to 400,000 in eight months from July 1966. He did it by telling the customers what was really going on, by a lot of insignificant details, and by a fair amount of sex.

Mr Gideon Haigh, who trawled through back copies of Truth for his book on abortion and police corruption, The Racket (MUP, 2008), informed a seminar on Perkin’s golden age that Truth was a far better newspaper than The Age. Oh dear.

On the other hand, Perkin did not put Rupert Murdoch into London (and hence New York and hence Farks News), as Truth did.