This is the 24th 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 has perverted justice ever since. 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.’
European courts adopted truth-seeking after a conference in 1215. English judges formally rejected the system in 1219.
European judges perverted justice for five centuries; they believed, like George W. Bush and Barack Obama, that torture is a reliable way of finding the truth.
In common law countries, lawyer-politicians have been able to block change since they became the “dominant interest” in Parliament about 1350. Vote 1: Anyone but a lawyer.
The adversary system is a different kind of racket. Lawyers versed in sophistry gather and present evidence, question witnesses, and can spin the process out. The civil version dates from 1460; the criminal version from 1695.
Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.
Napoleon began to reform the truth-seeking system in 1800. Versions of his system are used in Europe, South America, Japan, South Korea, China.
In the past two centuries, common law judges have created a number of truth-defeating devices which bias the law in favour of criminals and plaintiffs in civil cases such as libel and negligence. The bias necessarily tends to pervert justice.
Tax evasion rulings by judicial criminals such as Sir Garfield Barwick have stolen billions from the Tax Office and pay-as-you-earn taxpayers.
24 truth-defeating devices
* indicates a rule which conceals evidence
*16. Concealing hearsay
In the investigative system hearsay evidence is weighed, not concealed. That was also the common law practice until lawyers got control of the criminal process. Professor Julius Stone and former Justice W.A.N. Wells wrote in Evidence: Its History and Policies (Butterworths, 1991):
This need of care in receiving hearsay testimony was recognised by our courts as one of wisdom and policy as long ago as the middle of the 16th century … As a categorical rule of the English law of evidence, however, it was probably only settled at the end of the 18th century … with the remarkable result that the former cases of admission and use of such testimony as a matter of course were transformed in the 19th century into a limited number of exceptions to a rule excluding all hearsay evidence.
The excuse for concealing second-hand evidence is that the original speaker is not available for cross-examination which might show he was wrong, confused, or simply lying. If that were a valid excuse for concealing evidence, judges would not be bound by precedents made before, say, 1900. Nor would we accept that the US broke from Britain, or that Britain won the Battle of Waterloo.
O.J. Simpson was accused of having cut the throat of his wife, Nicole, on Sunday, 12 June, 1994. In January 1995, Judge Lance Ito used the hearsay rule to conceal evidence of her diary entries in which she said she was afraid Simpson might kill her, and evidence that she rang a refuge five days before her murder and said Simpson was stalking her and that she was afraid. Judge Ito said:
To the man or woman on the street, the relevance and probative value of such evidence is both obvious and compelling … it seems only just and right that a crime victim’s own words be heard [but precedent] clearly held that it [the hearsay evidence] is reversible error.
Lord Justice Stephen Sedley said (Howzat? London Review of Books, 25 September 2003) that the English and US criminal process is still caught up in: “… the absurdities of the rule against hearsay evidence … which even lawyers have difficulty in understanding and applying. (Is it permissible to testify that when the accused ran off, someone shouted ‘Stop thief!’ and so on.)”
An exception to the rule against hearsay is a statement by someone who knows he is dying. Acting Leading Stoker A.R. Gordon, in company with Stoker E.J. Elias, stabbed Stoker J.J. Riley 14 times on the battle cruiser HMAS Australia in March 1942 to prevent him reporting their homosexual activities. Before he died, Riley told three officers that Gordon had stabbed him, but their evidence was concealed because a doctor did not tell Riley he was going to die.
Gordon and Elias were convicted on circumstantial evidence.
*17. Concealing a pattern
Justice Russell Fox says an understanding of facts depends heavily on context, but as Dr Bob Moles notes in the Foreword to this book: ‘ … most of what we need to know to place the knowledge in context in trials is ruled to be inadmissible … ‘
The rule against ‘similar facts’ specifically hides evidence of a pattern of criminal behaviour. In another lie by omission, prosecutors are obliged to falsely imply that the accused is a first offender. For instance, in 2003 an incompetent Welsh thief’s 247 previous convictions were concealed from the jury. He was found not guilty of theft.
The rule thus eliminates much context, truncates the chronology – always the first element of deduction – and protects repeat criminals, e.g. serial rapists and organised criminals such as extorting judges and the Mob.
The rule, a relatively recent concoction, derives from a case of systematic murder of babies. Sydney ‘baby-farmers’ John and Sarah Makin took in unwanted babies for a fee; murdered them; and buried the bodies in their back yards.
They were charged with murdering one baby. The trial judge let in evidence of 12 other dead babies found in the yards of their various previous homes.
The guilty verdict was appealed up to the Privy Council in England on the basis that evidence of the other 12 murders was unfair to the Makins.
In Makin v Attorney-General of NSW, the Privy Council dismissed the appeal, but Lord Chancellor (1886 and 1892-95) Farrer Herschell (1837-99) used words which have been taken to mean that pattern evidence will almost never be admitted. Herschell said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely to have committed the offence for which he is being tried.
Dr John Forbes said in Similar Facts that, ‘despite complaints that Makin is vague if not almost vacuous’, Herschell’s remarks ‘still enjoy scriptural status’.
Dr Forbes noted a US version in People v Molineux (1901): ‘The State cannot prove against a defendant any crime not alleged in the indictment … as aiding the proofs that he is guilty of the crime charged.’ Oliver Cyriax, a lawyer, wrote in The Penguin Encyclopedia of Crime (1996):
It is generally agreed that the date-rape case against William Kennedy Smith failed on the first day of the trial, 2 December 1991, when the prosecution was barred from calling evidence of similar assaults by Smith. The rules against ‘similar evidence’ are strict. Nothing is more likely to lead a jury to a finding of guilty – on the 17th occasion – than to hear the suspect committed (or has been acquitted of committing) the same offence 16 times before … evidence of prior acts is only admissible if the crimes show a clear and unique ‘signature’ or modus operandi.
Jason Van Der Baan committed a number of sex crimes in Sydney between 1994 and 1996. In 2001 he was convicted on two sex crimes and sentenced to eight years. He was then charged with the murder of his aunt, Mrs Irene Wilson, 39, at her home in 1995. She was found face down on a bed with her hands tied behind her back and a cord around her neck.
In 2002, the trial judge, Greg James, felt that the law obliged him to conceal:
• Van Der Baan’s two previous convictions for sexual assault.
• His confession to an undercover police officer in prison.
• Evidence that he tied up other victims in the same way as the murderer of Mrs Wilson.
• Evidence that he was obsessed with her and had stolen her underwear and cut out the crotch.
The defence was of the SODDIT (some other dude did it) variety. A friend of Mrs Wilson was cross-examined as if he was a suspect. He was not allowed to sit with the family in court because it would be unfair to the accused if the jury could see he was still a friend of the family.
The jury took only three hours to find Van Der Baan not guilty. Even Dominick Dunne could not have improved on the words of Mrs Wilson’s brother:
This trial was not about the murder of my sister … it wasn’t about truth or about justice; it was about points of law. All we hear about are the rights of the accused. What about her rights to have lived and seen her children grow? What about the rights of her children to be cared for by a loving mother?
Van Der Baan hoped to get parole on the other crimes when DNA (deoxyribonucleic acid) evidence tied him to a sex crime in 1995 and another in 1996. He pleaded guilty to the charges in April 2009.
The US has had an exception to the rule against pattern evidence since 1970, but only for organised criminals in the Mafia, in business, and in the judiciary. The exception was the product of an unlikely combination of a Mob hitter, a Senator, a young lawyer, and a complex President.
Senator John McClellan (Democrat, Arkansas, 1896-1977), a lawyer, chaired the Sub-committee on Investigations from 1955 to 1973. In 1963, an assassin in the Genovese family, Joe Valachi (1903-71), explained the structure of the Mafia to the sub-committee and, via television, to the public.
Bob Blakey was the principal draftsman of subsequent legislation to deal with organised crime. The legislation was to hand when Richard Nixon ran for President in 1968 partly on law and order, and was passed in 1970 as the Organized Crime Control Act. The RICO (Racketeer-Influenced and Corrupt Organisations) legislation is Title IX of the Act.
RICO was plainly going to make it harder for lawyers to get rich organised criminals off. I asked Blakey, now a law professor at Notre Dame, in 2001 how he got RICO past the American Bar Association. He replied: “Only with difficulty. The ABA at first endorsed it. We had an in with the President [Nixon]. It [the ABA] then raised objections. We overcame them with White House support.”
RICO’s effect on the Mob confirmed that the pattern rule perverts justice on a huge scale. It put away 23 previously untouched Mafia bosses throughout the US between 1981 and 1992 including those of the five New York families: Frank (Funzi) Tieri and Anthony (Fat Tony) Salerno (Genovese family), Anthony (Tony Ducks) Corallo and Vittorio Amuso (Lucchese family), Carmine (The Snake) Persico and Vicorio Orena (Colombo family), and John Gotti (Gambino family). Vincente (Chin) Gigante (Genovese family) was convicted in 1997.
RICO was used to imprison 70 white collar organised criminals in Chicago: 20 judges and their 50 bagmen (lawyers and court officials) between 1984 and 1994
In 1994, US federal rules of evidence were revised to allow the use of prior alleged acts in federal sex cases. A few states, including California, Indiana, Illinois and Missouri, adopted similar rules.
In 2004, British Home Secretary David Blunkett, announced a plan to give judges a discretion to let jurors hear of an accused’s previous convictions. He said: ‘These reforms put victims at the heart of the justice system. Trials should be a search for the truth [!] and juries should be trusted with all the relevant evidence to help them to reach proper and fair decisions.’
Blunkett no doubt meant well, but Professor Benjamin Barton would say it is unwise to give judges a discretion in matters which affect lawyers’ financial interests. And if the Government really believed that trials should be a search for truth, they would abolish the other 23 anti-truth devices.
Australian police and other experts have requested RICO-type legislation since 1984, but the rule against pattern evidence continues to protect white-collar organised criminals, the Calabrian ‘Ndrangheta, and sex criminals.
