This is the 25tth 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 a 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 in 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
*18. Concealing improperly gained evidence
Common law countries vary on concealing evidence said to have been improperly procured. British judges tend to let the evidence in if it is reliable. Australian judges have been supposed to let the evidence in since Bunning v Cross (High Court, 1978), if it is reliable and if the investigators’ misbehaviour is less vile than the crime alleged. A similar rule applies in Canada. The US position was uncertain from 1791 to 1961. The Fourth Amendment stated:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …
No one knows what ‘unreasonable’ means. Judge Harold Rothwax says in Guilty: The Collapse of Criminal Justice that ‘in more than 90 per cent of cases, the police don’t know what the law is’, i.e. what is reasonable in the particular case. He added. ‘A chief judge riding in the back seat of a police car wouldn’t know what the law is!’
Justice Benjamin Cardozo (1870-1938, Supreme Court 1932-38) did not like concealing the evidence. He said: ‘’The criminal is to go free because the constable has blundered’.
More criminals have gone free since 1961 because of devious manoeuvres by Tom Clark (1899-1977, Supreme Court 1949-67). It seems more likely than not that Murray (The Camel) Humphreys, a fixer for the Chicago Mob, organised Clark’s appointment to the court.
A fix was needed because the Chicago boss, Paul (The Waiter) Ricca (1897-1972, b. Felice De Lucia, Naples), got 10 years in 1943 for extorting from Hollywood film studios. In 1947, possible new charges promised to defeat his chance of parole. The privilege of client-lawyer secrecy made it safe for Ricca to conspire with his lawyers. Carl Sifakis reported:
Printed accounts [in Chicago] had Ricca telling his lawyers to find out who had the final say in granting him a speedy release, saying: ‘That man must want something: money, favours, a seat in the Supreme Court. Find out what he wants and get it for him.’
The man who got the job was a thinking man’s mobster. Sifakis said Alphonse Capone (1899-1947) said: ‘Anybody can use a gun. The Hump uses his head. He can shoot if he has to, but he likes to negotiate with cash when he can. I like that in a man.’
Gus Russo wrote in The Outfit: The Role of Chicago’s Underworld in the Shaping of Modern America (Bloomsbury, 2004):
After considering the problem, Humphreys hit upon the solution: He would tap a 68-year-old Missouri attorney named Paul Dillon, a litigator he had employed in 1939 … Humphreys’ kinship with the Missouri-based Dillon was a natural result of his role as the Outfit’s political liaison to that state. And in the shadowy world of underworld-upperworld collusions, this linkage gave Humphreys leverage over the most powerful politician in the United States … Dillon’s gangster associates in Kansas City, Missouri, had sponsored the ascendancy of the 33rd president of the United States, Harry S. Truman. Humphreys knew that by playing the Kansas City card he was subtly threatening to open a Pandora’s box that Washington would be forced to address.
Oliver Cyriax said it was claimed that the terms of The Camel’s deal were that Truman would get ‘a $5 million backhander’; Attorney-General Tom Clark would release Ricca; and Clark would get the next vacant seat on the Supreme Court. Clark released Ricca in 1947. Truman put Clark on the court in 1949.
In 1957, a boxing promoter with electric hair Don King (b. 1931), told Cleveland police of a bomb suspect. Police broke into Dolree Mapp’s premises. There was no bomber, but they charged Mapp with possessing obscene materials. She appealed her conviction to the Supreme Court.
Judge Harold Rothwax says Mapp v Ohio (1961) was a straightforward First Amendment (free speech) case. The ‘search and seizure’ Fourth Amendment was not argued at the hearing, nor was it raised when the judges conferred. They voted 9-0 to reverse the conviction on First Amendment grounds, but Clark wrote the opinion on Fourth Amendment grounds. He said all evidence wrongly gained must be concealed. Judge Harold Rothwax observed:
Clark’s opinion stood, but the vote of the justices was quite revealing. Although the majority … agreed that Mapp’s conviction should be reversed, only four of the judges (a minority) agreed on Fourth Amendment grounds … What Clark and his allies did was comparable to the Supreme Court overruling Roe v Wade [1973], the abortion rights decision, with a case involving free speech.
A jury correctly found that Edward Coolidge had cut the throat of Pamela Mason, 14, but in Coolidge v New Hampshire (1971), the Supreme Court overturned the verdict on the ground said the local Attorney General was wrong to issue warrants to search Coolidge’s car. Judge Rothwax said:
Did I become a judge for this? Is this the system I am proud to be part of? The Coolidge reversal makes me ashamed. Stories like this are an insult to common sense and fair play. There is certainly little feeling for the victim, who was brutally tortured and murdered. There is also little feeling for the truth.
Lawyers supervised the Australian National Crime Authority’s investigations into white and blue collar organised crime. In 1993, the NCA charged John Dorman Elliott, Kenneth Biggins, and Peter Scanlon with stealing $66 million from a Melbourne brewery they controlled.
In 1996, without empanelling a jury, Justice Frank Hollis Rivers Vincent heard argument about what evidence he would conceal. That took six months. Robert Richter appeared for Elliott. Vincent then said in effect he would suppress the evidence of some 130 witnesses because NCA lawyers had obtained evidence improperly.
Vincent said the lawyers’ errors were inadvertent, not deliberate. In a Bunning v Cross situation, lawyers’ inadvertent errors could hardly be worse than alleged theft of $66 million. The prosecutor offered no other evidence. Vincent declared Elliott, Biggins and Scanlon not guilty.
Garry Livermore, a barrister who had led the NCA investigation from 1989, gave evidence to the Joint Parliamentary Committee on the NCA on Monday, 8 October 1997. He seemed a little peeved, perhaps because the investigation, various legal skirmishes, and the non-trial had cost taxpayers some $20 million, and also by Elliott’s self-proclaimed sexual athleticism. Hansard recorded Livermore as saying of Elliot, Biggins and Scanlon:
They were gone. They would have been gone if the evidence had been led before a jury. The evidence against them was overwhelming … Not one of some 130 witnesses ever gave evidence before a jury in this matter. It is a disgrace and blight on the system… Mr Chairman, I attended the Carlton football match at Optus Oval the Saturday after Mr Justice Vincent’s ruling throwing out all the evidence in the case. I sat down and listened to Mr Elliott … roar to the crowd [that] he had ‘stuck it right up the NCA’. He had not done that at all. What he had done was stick it right up the system and he stuck it up you, Mr Chairman, and every law-abiding member of the Australian community.
That may be, but it was the adversary system which – to continue Mr Elliott’s typically delicate metaphor – raped and pillaged the body politic. The Victorian appeal court later found that Vincent was wrong to conceal the evidence [from himself] because the NCA lawyers had got the evidence properly, but the horse had bolted: Elliott, Biggins and Scanlon could not be retried, because the common law said wrong not guilty verdicts can never be wrong (see Double Jeopardy below).
The obvious remedy is to admit all improperly-gained evidence if it is reliable, and to punish erring detectives at a special tribunal. That has not been tried, perhaps because detectives might insist that lawyers who pervert justice should also be punished.
