Cassandra Voices

Tag: Francis Bacon

  • Guilt and Innocence in the Criminal Justice System Part 1

    I have just finished representing a client in a murder case and have plenty to reflect on about guilt and innocence. This is a two-part excursus for Cassandra Voices dealing first with why certain people are found guilty of crimes they did not commit.

    The Innocence Project, with which I was involved over many years, has flagged the issue of cognitive or confirmatory bias, which often plays a crucial part in my closing speeches. The idea that we are liable to jump to conclusions based on pre-existing prejudices or our life experiences is as old as Dante or Francis Bacon.

    The idea explains why in natural justice terms the aphorism: justice must not only be done but be seen to be done, cautions against a decision based on the perception of bias, including objective bias. The crucial point is to be self-reflexive and to acknowledge shades of grey. Such is the path of wisdom – esteem nuance and not dogmatism. That is how to judge or be a juror, or even an investigative police officer, and not a persecutor.

    In terms of Confirmatory Bias Drs. Dror and Hampikian of The Innocence Project have demonstrated that even when experts review a DNA test, if the police disclose which is the suspect’s DNA profile, a favourable match to the evidence may be found.

    In a case study they conducted, two state experts who declined to exclude a suspect had information about his background. Whereas, when that same evidence was sent to seventeen out-of-state experts at another lab – who had no information on the suspect – twelve of the seventeen DNA analysts excluded the suspect from the inquiry, four deemed the matter inconclusive, and only one agreed with the original state police lab scientists that the suspect could not be excluded.

    We refer to this as confirmatory bias, and in my view it goes beyond police officers and social workers. It also seems to apply to pathology experts and forensic experts. The best are trained to understand such biases exist, and as one expert I recently cross-examined recently intimated, allow for a spectrum of doubt.

    Leading Questions

    A crucial problem emerges in the trial and investigative processes when repetitive, leading questions are asked.

    Elizabeth Loftus and Maggie Bruck specialise and are associated with the Innocence Project in false memory syndrome, which is accepted as persuasive in many courts. So, for example Loftus conducted a survey familiar to lawyers as to how different participants react to how any question is framed.

    An example of a leading question is illustrated by the difference between the following questions.

    Question 1: At what speed did car one contact car two?

    Question 2: At what speed did car one smash into car two?

    The question using the verb to smash led to the witnesses seeing broken glass when there was none and to assume guilt. In short, the question was framed to achieve a particular answer. It was suggestive and leading.

    A leading question the big no-no of the criminal courts, as it is used to elicit a desired answer, and build a conclusion from a premises. Unfortunately it is often employed by police officers and social workers. A barrister may attempt to lead, but is chastised if it is obvious.

    Language matters and those who misuse or traduce it to achieve outcomes whether for personal, political  or commercial reasons should be treated with the utmost scepticism. It is increasingly tolerated in a culture of obvious untruth and exploitation, which is now seeping into the criminal justice system.

    Brains can be reduced to mush by leading and direct questions. By such mechanisms children can be led to believe that day workers slaughtered rabbits, as Stanley Schiff recently remarked in a book about the Salem Witch Trials.

    Examination of a Witch (1853) by T. H. Matteson, inspired by the Salem trials.

    An opinion once adopted

    Francis Bacon, the great British philosopher and intellectual as well as Lord Chancellor of Britain also remarked in this context:

    The human understanding when it has once adopted an opinion … draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside or rejects

    In rape and abuse cases such attitudes as this have spiralled out of control, particularly through the overloading of a formal accusation with endless satellite allegations, which create an overwhelmingly prejudicial effect; compounded by the admission of bad character evidence in the U.K.. This represents the over-weighting of morality to determine criminality.

    Historic cases are hugely problematical, as is delay. The all too convenient idea that a victim waits donkey’s years because of suppressed memories leaves a defendant, twenty or more years later, relying on the fallibility of memory – often in the absence of documentation – to defeat allegations. When relationships break-up and partners move on and there are children involved it often opens up an unholy vista.

    That is not to undermine the victims of serious crimes. But the falsely accused are also victims and their lives are often destroyed.

    Conceptual closure, and stereotyping are necessary as a survival plan but not for justice. Black and white thinking leads to tick box, or slot machine justice.

    Identification Evidence

    Life of course is messy, as is the criminal justice system , and we need categories or categorisations to survive, but we must confront the problem of over-categorisation.

    The legendary jurist Jerome Frank was much attuned to how the prejudice of participants in the trial process (judges and indeed jurors or witnesses) influenced decisions, and how selective recall or mistakes about facts often affected the outcome of a case.

    Thus, the unpredictability of court decisions resides primarily in the elusiveness of facts and deep-seated prejudice. He wrote:

    When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial. Court’s finding of the fact involves a multitude of elusive factors: First the trial judge in a non- Jury trial or the jury in a jury trial must learn about the facts from the witnesses and Witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their courtroom reports. Of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the Parties to the suit, or the lawyers. Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious. Biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red-haired woman . . . or men with deep voices or high-pitched voices.

    Identification evidence or the fleeting glance is often subject to the Turnbull Warning of the dangers of same, and although safeguarded it remains troublesome. 

    Juries have always been swayed by advocacy, and it is, as I have hitherto written, about a dark art more akin to magic or sorcery, but even the most ingenious sorcerer cannot normally produce a silk purse from a sow’s ear. Jurors are not entirely naïve and, in my experience, do focus on the evidence, but particularly in America, hysterical prosecutors often confuse morality and criminality. That this is fuelled by excessively religious people warrants condemnation.

    There are other causes of false convictions. In Ireland since 2015 when the JC Case jettisoned the exclusionary rule, allowing the police to characterise tainted evidence as inadvertence or a mistake, it created an open door for targeting and framing. The prevalence of police corruption and incompetence in Ireland recommends, in my view, a special layer of checks in addition to the DPP, before any arrest is sanctioned.

    Another consideration is where an offence is far too loosely defined such as the proposed Irish criminalisation of so-called hate crimes.

    I am very attuned to dealing with vulnerable people with mental health problems and drug addictions. The problem of false confessions arises when a person is interviewed often without an appropriate adult in the room, and starts to sing like a canary. Vulnerable people will confess to almost anything, often based on lack of self-esteem and incredibly short-sighted desires to get out on bail, sometimes just to go to the pub or attend a football match. Solicitors should always be present. Psychiatric reports need to be secured.

    The explosive growth of social media has led to a proliferation of new crimes, such as what may be a mistaken decision to engage in a sexual role play conversation and, in that context, there is the rise in demonic entrapment, including the targeting of perceived sex offenders by vigilante groups who prepare the case for the police.

    We live in an age of extremes, characterised by witch hunts, increasing executive decrees, secret laws and over-regulation. It is eminently possible to stray into a wrong place at the wrong time and be accused unfairly.

    A crucial final point is to appreciates the damage caused by a false allegation. Even if a person is ultimately found not guilty, they may be traumatised for life.

    I hope the Innocence Project gains more traction improving processes at the beginning of the system, rather than providing a photo opportunity twenty years later, when someone’s life has already been destroyed.

    The question of compensation also arises, as in the recent Andrew Malscherk case who served eighteen years for a rape he did not commit.

    But to anticipate my next article not all are innocent, and some who are guilty are assumed to be innocent. Bob Dylan’s song about Rubin Carter ‘Hurricane’ is forceful and brilliant, although it may have given a sanitised account of the accused. Not that he could have been the champion of the world but that he was always an innocent man in a living hell.

    Feature Image: Christian Wasserfallen

  • Love Denied: Baudelaire’s Une Charogne

    Une Charogne (1859) is among the most important poems of the 19th century, containing all of its author’s ground-breaking aesthetic. Our own aesthetically challenged century could learn a lot from it, in terms of the aesthetic of rupture, spleen and discord.

    It is Baudelaire’s response, in a sense, to the early Romantics, such as John Keats for example, and particularly concerning notions of beauty. Baudelaire, like Mary Shelley and Shakespeare before her, found more engagement in what could be described as the dark horror of existence, which had always existed in literature, particularly in writers such as Dante Alighieri, in whose work Dame Francis Yates saw the keys, or genesis, of the Gothic novel: in particular in the last Canto of the Inferno when Count Ugolino is forced by starvation to eat his sons locked away in a tower. However, Baudelaire’s genius was to take such an aesthetic into the everyday. In this this way he was a true revolutionary and visionary.

    Count Ugolino and his sons in their cell, as painted by William Blake circa 1826.

    Une Charogne is the perfect example of his aesthetic. The poet starts off describing a carcass which he has seen rotting on his way home, and which he associates with a former love which he felt for his girlfriend. The reader, however, is only made aware of this in the very last verse of the poem. The remarkable contrast of topics is so unexpected that even one-hundred-and-sixty-years on the poem continues to shock.

    The poem, typically, follows the genre of memento mori, Baudelaire’s originality lies, however, in applying what were rather banal motifs associated with death – such as skulls placed alongside everyday fare like fruit and flowers – and then to insert affairs of the flesh, and, of course, the heart.

    Only readers who have experienced real heartbreak themselves, what the Ancient Greeks described as the Orphic mysteries, will have any real appreciation of the fantastical act of catharsis that is taking place, how the poet wonderfully evokes his former passion for a beloved, and then inverts Love with its counterpart Hate; thus upturning the apple cart of feelings for the beloved which have been transformed into their opposite; diabolical hatred and disgust; perhaps more so for himself, for being duped by such feelings in the first place!

    As indicated, anyone who has been in Love and who has then lost – inevitably harbouring a sense of betrayal – will recognise, and feel, the powerful emotions driving the poem forward. The poet’s dedication and craft at the description of the whole process continue to inspire awe.

    Three Studies for a Portrait of Henrietta Moraes, by Francis Bacon,1963.

    Francis Bacon Interviews

    Regarding my transversion, I was helped enormously by using the interviews conducted by David Sylvester with the twentieth century British painter Francis Bacon. Bacon was a keen reader of Baudelaire, and one who followed the French poet’s dramatic overhaul of the Romantic spirit. One only has to consider Bacon’s entire corpus of imagery, the violent palette of colour, the decomposing matter of flesh, and the ‘smoky bacon’ of decomposing Love!

    I find that this unique aesthetic contradicts directly the flimsy narrative of many contemporary literary journals which are marred by politically correct censorship; the overwhelming and ever-present narrative of all-inclusivity and sensitivity to Others that has now reached idiotic proportions.

    What do I mean by that? Take for example the narrative of Une Charogne below. Anybody reading the poem with a half a brain will understand there is a very definite mask wearing taking place on the part of the poet. The diabolical humour is just that, a very nasty joke. But one which is very human.

    When one has been jilted the immediate response is to seek revenge. Exact some hate! This is simply being human, and to deny the presence of this impulse is simply perverse. All is fair in love and war. A person who has betrayed you with another having vowed to love you forever is now in the arms of another.

    Portrait of Charles Baudelaire by Gustave Courbet (1848).

    Fail Again

    There is, I would say, no greater pain on this Earth than the agony of abandonment. It is the hardest possible task for any human being to accept graciously that loss, and then to move on. It reflects the instruction of Samuel Beckett in Worstward-Ho: ‘Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.’

    Life onwards will be mere monochrome. A travesty in a sense. This is the exact sentiment that lies behind Baudelaire’s Une Charogne. The poet is damned, damned by the Other. And so he will exact his revenge. The poet finds it in the poem, alone, in its very composition.

    I would liken this Art to extracting puss. It is an act of catharsis. Again, a very Greek notion. Francis Bacon was also a great fan of the Ancient Greeks, like Baudelaire before him.

    I have made the point repeatedly: if there is not a little poison in the well there is no sweetness to the water. I have met all too many high-minded moralists who plead constantly for whatever Other is currently in fashion.

    These latter-day saints among the chattering classes are hypocrites, who sanctimoniously bottle up their resentments. I have been a witness to a deformed humanity spurting out in the most toxic manner imaginable. Believe me, it is not a pretty sight! — Hypocrite lecteur, — mon semblable, — mon frère! (— Hypocritish reader, — my fellow, — my brother!)

    The French psychoanalyst Jacques Lacan.

    Broken Word

    On the philosophical plane the poet has completely sublimated Friedrich Hegel’s (1871-1831) dialectic of the Master and Servant. To speak in the terms of Baudelaire’s countryman Jacques Lacan (1901-1981) – of a different generation but observing an unaltered humanity – he is killing symbolically the Other in the world of the Real. This for Lacan, as for the poet, is entirely symbolic.

    Baudrillard – perhaps the most Baudelairean of late twentieth century French thinkers – was to make of this his unique discourse point. He believed that we had lost our capacity for creating metaphor, so enamoured were we by the hyperreal; that is to say the literality of living we now observe in a mediated age where news is constant, and so ever-present. The Hegelian Now repeated ad infinitum is a poet’s nightmare. This explains why we are living in a period of atrocious, purely confessional poetry. The so- called ‘Spoken Word’ where the Now is Ever Present!

    I AM

    The spoken word speaks – BEING poetry itself! Such is the utter fallacy.

    This is the poetry of idiots.

    If you do not kill your enemy symbolically, you will never kill him. Such is the Real. Not reality, but the symbolically Real, which for a poet IS the only reality.

    Have you ever considered where Populist monsters spring from?

    Take a leaf out of Baudelaire’s black book, write your words in Hate, as much as Love. Be the totality that is You. And you will be a better artist, and Human, for it.

     

    XXIX.- UNE CHAROGNE

    Rappelez -vous l’objet que nous vîmes, mon âme,
    Ce beau matin d’été si doux :
    Au detour d’un sentier une charogne infâme
    Sur un lit semé de cailloux,

    Les jambes en l’air, comme une femme lubrique,
    Brûlante et suant les poisons,
    Ouvrant d’une façon nonchalante et cynique
    Son ventre plein d’exhalaisons.

    Le soleil rayonnait sur cette pourriture,
    Comme afin de la cuire à point,
    Et de rendre au centuple à la grande Nature
    Tout ce qu’ensemble elle avait joint ;

    Et le ciel regardait la carcasse superbe
    Comme une fleur s’épanouir.
    La puanteur était si forte, que sur l’herbe
    Vous crûtes vous évanouir.

    Les mouches bourdonnaient sur se ventre putride,
    D’où sortaient de noirs bataillons
    Des larves, qui coulaient comme un épais liquide
    Le long de ce vivants haillons.

    Tout cela descendait, montait comme un vague,
    Ou s’élançait en pétillant;
    On eût dit que le corps, enflé d’un souffle vague,
    Vivait en se multipliant.

    Et ce monde rendait une étrange musique,
    Comme l’eau courante et le vent,
    Ou le grain qu’un vanneur d’un mouvement rythmique
    Agite et tourne dans son van.

    Les formes s’effaçaient et n’étaient plus qu’un rêve,
    Une ébauche lente à venir,
    Sur la toile oubliée, et que l’artiste achève
    Seulement par le souvenir.

    Derrière les rochers une chienne inquiète
    Nous regardait d’un oeil fâché,
    Épiant le moment de reprendre au squelette
    Le morceau qu’elle avait lâché.

    Et pourtant vous serez semblabe à cette ordure,
    A cette horrible infection,
    Etoile de mes yeux, soleil de ma nature,
    Vous, mon ange et ma passion !

    Oui ! telle vous serez, ô la reine des graces,
    Après les derniers sacrements,
    Quand vous irez, sous l’herbe et les floraisons grasses,
    Moisir parmi les ossements.

    Alors, ô ma beauté ! dites à la vermine
    Qui vous mangera de baisers,
    Que j’ai gardé la forme et l’essence divine
    Des mes amours décomposés !

     

    XXXIX. – The Exquisite Cadaver

    Remember the ideal object which you discovered~
    That beautiful summer morning, Dear soul:
    By way of the path where you found that exquisite
    Cadaver lying on a bed of pebbles,

    Her legs in the air, like some old tart,
    Burning and stewing in poisons,
    Her belly slit, almost nonchalantly,
    Pouring forth all manner of noxious gasses.

    The sun burns down on the decomposing
    Body, as if searing a steak,
    Rendering back a hundred- fold to Mother Nature,
    What she herself had first conjoined.

    And the sky looks upon the superb carcass
    As it would upon a flower of Evil,
    The rigor mortis encroaching to such a point
    That the very earth around it has been scorched.

    Great Blue Bottles swarm in convoys,
    Buzzing out of the gaping cave, Cyclopean…
    While a treacle of feasting larvae thickly drip,
    Making of the stain a macabre Persian carpet.

    The process of decomposition rose before me,
    Falling in waves, and which I perceived in a kind of
    Pointillism, so that, wave-borne,
    The corpse seemed to come alive and multiply before me!

    This alternate universe was announced in atonal chords,
    And hit me with all the fever of a jungle humidity,
    Or, like the sporadic grains, scattered by a winnower,
    Whose rhythmic movements spun me in a dervish.

    The effaced shapes and forms were as if but a dream
    From a preliminary sketch, slow to arrive,
    And which the artist, not being able to rely on memory,
    Had then to resort to the magnetism of specific photographs.

    Behind the rocks an unnerved dog
    Looked at us both with a ravenous eye,
    Trying to deduce the auspicious minute
    When he could rip apart some rotting flesh from the bones.

    And yet, You now would appear to be not so dissimilar to this horror,
    This putrid infection,
    At one time Star de mes yeux,
    You my one time, all consuming passion!

    Yes! After the last rites have long ago been pronounced upon us,
    O You, my once graceful Queen,
    When will you now, in your own time,
    Wallow with these bones upon the grass?

    So, my great Beauty! Whisper then to the vermin
    How you will cherish their kisses,
    While I guard for eternity this sublime image,
    Of all of our decomposing Love.

    Feature Image: Charles Baudelaire by Étienne Carjat, 1863