Cassandra Voices

Tag: system

  • Guilt and Innocence in the Criminal Justice System Part 2

    As the founder of the now seemingly inactive Irish Innocence Project, and co-founder of The European Innocence Network, I staunchly oppose the death penalty, with exceptions for certain Crimes Against Humanity. I have personally visited and represented individuals on death row in Kenya and the U.S.. This underscores the critical need for our legal system to exercise caution, and precision, to avoid wrongful convictions.

    Recently, I have condemned in a Cassandra Voices Podcast the inhumane prospect of Julian Assange enduring indefinite incarceration. This stance does not, however, imply a belief in universal innocence, or countenance a dismissal of deserved punishment. Rather, I advocate for a measured approach to justice, echoing Shakespeare’s notion of ‘measure for measure’ in determining appropriate consequences for actions.

    Following an ethical determination of guilt, the central question revolves around what form of punishment is suitable. But before delving into punishment, we must first address the concept of guilt, and whether the guilty evade accountability.

    Unfortunately, instances abound of individuals with power or wealth evading justice through various means. Examples include former President Trump and Clinton’s long list of pardons on leaving office, and instances of state officials abusing their authority, as depicted in literature such as Klima’s 1991 novel Judges on Trial. These cases underscore the danger posed by those entrusted with upholding the law manipulating it for personal gain.

    The Worst Criminal

    A state or judicial criminal is often the worst criminal. They have subverted the Rule of Law and the processes they were appointed to uphold. They are professional hypocrites.

    In his 1971 detective novel Equal Danger, Leonardo Sciascia demonstrates how in Italy judges may become, by stages, complicit in murder. Chillingly, the President of the Supreme Court intimates to the investigating detective that in condoning murder the judiciary are incapable of error.

    Sciascia also documented the complicity of the mafia and Christian Democrats in the murder of God’s banker Roberto Calvi in 1982, and of course the kidnap and murder of the progressive, or incorruptible, Christian Democrat Aldo Moro in 1978.

    In Ireland the incident that primarily gave rise to Conor Cruise O’ Brian’s immortal phrase GUBU (grotesque, unbelievable, bizarre and unprecedented) was the murderer of the nurse Bridie Gargan and the farmer Dónal Dunne in 1982. The murderer Malcolm McArthur was discovered on the private property of then Attorney General Patrick Connolly.

    Not uniquely in Ireland, the powerful avoid and do not accept responsibility for their actions and may resort to framing others. Voltaire, the earliest expert in miscarriages of justice coined the phrase per encourager les autres, to deal with the scapegoating of Admiral Pyle by the establishment.

    Political criminals also enact laws to protect their interests. The new Hate Crimes Bill in Ireland is finally being opposed by SF as they have recognised the danger it poses.

    Foundational Tenet

    The legal principle of ‘presumed innocent until proven guilty beyond reasonable doubt,’ as established in the case of Woolmington v DPP (1935), serves as a foundational tenet. Yet, challenges arise, particularly regarding the interpretation of evidence and credibility of assessments.

    In every case I have recently conducted the same question is asked by jurors: “is sure the same as beyond all reasonable doubt?” Judge rightly say yes, and try to avoid further questioning to avoid being buried in semantics.

    Of course, the crucial point is that unless someone tells a defence lawyer he or she is guilty – in which case you either withdraw or can only defend by challenging the prosecution evidence without asserting innocence – you cannot know definitively.

    Cognitive bias cuts all sorts of ways. A defence lawyer should be timorous about getting a client to plead guilty if there is any doubt. Not least, many clients are vulnerable and inclined to please authority and, as has happened in my experience, defendants may seek to change their plea.

    The intersection of morality and legality further complicates matters. It is essential to caution against conflating moral judgment with legal culpability. Instances of moral condemnation influencing legal proceedings – as seen in the admission of bad character evidence – highlight the need for a nuanced approach.

    A feature of my speeches is to caution a jury not to confuse morality with legality. Moral condemnation is often used by the prosecution to smear the accused, and the previous bad character admissions ushered in by Blair in the U.K. opens that gateway.

    In Ireland, however, the exclusion of bad character is not a good idea. Evidence of bad character is only inadmissible in certain defined exceptions, such as if one puts one’s good character in evidence. There should be more of a halfway house.

    Despite efforts to discern guilt, the process remains fraught with challenges. Guilty individuals often resort to elaborate tactics to obfuscate the truth, necessitating a vigilant approach from their lawyers. Additionally, societal biases and institutional pressures can influence witness testimony and judicial outcomes.

    In the pursuit of justice, it is crucial to distinguish between genuine miscarriages of justice and rightful accountability. While liberal objections to wrongful convictions are warranted, there are instances where the punishment must align with the severity of the crime. The case of the Moors Murderers 1963-65, Ian Brady and Myra Hindley, serves as a poignant example of criminals rightfully facing lifelong imprisonment.

    Reluctantly, it must be conceded many are guilty. And it is sometimes very difficult to get them to accept their guilt. Even my great hero Clarence Darrow ‘Attorney for the Damned’ represented Leopold and Loeb, who in a nihilistic fashion attempted to kill another young man simply to prove they could get away with it. As in the Jamie Bolger case. Darrow knew they were guilty and avoided an insanity plea. Instead, he made the greatest plea in mitigation in the recorded legal annals to avoid the death penalty. But they did do it.

    Lucy Letby mugshot.

    Nurse Letby Case

    The recent case of Nurse Lucy Letby who was found guilty of murdering seven infants in Manchester crown court in 2023 is instructive.

    She is not the first Mancunium serial killer. Between 1963-65 in Saddleworth Moor near Manchester Mancunians Ian Brady and Myra Hindley murdered innocent children. It is noticeable that they were also influenced by the film ‘Compulsion‘ documenting the Leopold and Loeb case.

    Working on a recent case in Manchester, I resisted the temptation to visit the moors, but did pass by Market Street, Cheshire where another notorious murderer, the serial killer and doctor, erstwhile respectability known as Harold Shipman had his surgery. In this case a later inquiry revealed the police should have acted sooner. So, one should not always attack the police.

    And there is some evidence in Nurse Letby’s case that the NHS, in collective group think, buried their heads in the sand as the evidence accumulated. They were protecting the guilty through cognitive bias. A consultant who gave evidence in her case said lives could have been saved if there was not a cover up to preserve institutional reputation. Thus, in fairness, state officials, doctors and police officers are often hit from both sides: damned if they do; damned if they don’t.

    I have represented clients in several cases where due to witness reluctance or external pressures, the police have taken the action of NFA (No Further Action), which they have come to regret.

    The cheaper the crook…

    So, what are the hallmarks of guilt? It is surprisingly difficult to work out. One crucial sign is perhaps, as the American actor Humphrey Bogart said: ‘the cheaper the crook the gaudier the patter.’ Overly complex explanations are often a sign of guilt.

    The patter includes: convoluted challenges to police evidence gathering and exercise of due diligence on instruction; excessive casting of doubt on overwhelming expert evidence; elaborate excuses for extreme violence based on self-defence; and inappropriate allegations of police misconduct.

    Now the process must be tested and many wish to save their skins. Those who are desperate will often resort to anything, and the defence lawyer on instructions often must facilitate this.

    I remember how both myself and Adrian Hardiman were tarred with damnation, overlooking constitutional niceties, in the constitutional challenge to The Proceeds of Crime Act as lawyers for Gilligan by the Sunday Independent.

    A trial process weighs up whether evidence is relevant or not, and whether there is a case to be answered. The question of whether a case should have been brought in the first place is a different matter.

    Legal representatives may also argue over whether there has been an abuse of process through non-disclosure, non-compliance or a fit up. In this respect the absence of video or phone evidence is crucial. Once confronted, a guilty person may tangle themselves up in lies, which affects their credibility when giving evidence

    A witness who is lying must avoid the truth and is often lulled by persistent questioning into the trap of telling the truth by indirection.

    Thus, the prosecuting barrister Edward Carson, after listening to days of Oscar Wildes’ ridicule at his trial for gross indecency in 1895, popped the surprise question – a deadly weapon to be sparingly used in the barrister’s art – about the boy Grainger.

    Did you Kiss him?

    The answer which leads to the Reading Gaol and early death in Paris was:

    Oh no he was far too ugly.

    It must be stressed that the credibility of a witness must be read in the context of the vulnerable person they may be. Some suffer from addiction and mental health issues, which is not to say they are not telling the truth.

    Sadly, in a world of increasing subjectivism and loss of truth those who lie may have been telling the truth as they see it, or as they remember it, but not as a fact. Witnesses for defence and prosecution also have intellectual masking to justify in their own mind what they have done. Everyone, as Voltaire indicated, has their reasons.

    Anti-social Media

    In our time, text evidence from social media and other digital uploads such as chat lines are often very incriminating. The utilisation of social media can have disastrous consequences as historic texts and chats can come back to haunt you. They might demonstrate a propensity as a prelude or aftermath to an incident, and they often show planning, ostensible grooming or worse still acceptance. But comments of a salacious nature in isolation can be magnified by unscrupulous prosecutors.

    Scurrilous tactics are never justified, but tarnished evidence is often admitted. I am no fan of racist vigilante groups or engaging in quasi entrapment, but I recognise that sometimes they catch people who are guilty, or, more ambiguously, exhibit certain traits.

    Video evidence often confronts someone with what they really did under the influence and normally leads to a quick acceptance of responsibility.

    What happens next has been characterised by Oliver Wendell Holmes as the ‘bad man’ of law:

    If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, and not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

    The legal process is often unforgiving, albeit this is necessary at times.

    I do not believe in punishment as denunciation, or retribution where guilt and sin are confused, such as occurred in the sentencing of Roger Casement to death.

    With respect to what the British call just and proportionate punishment, I had the privilege of inspecting a Norwegian prison when attending a death penalty conference in Oslo. The tennis courts, swimming pools, private rooms discourage recidivism and potentially rehabilitate criminals.

    The Court of Appeal in the UK in R v. Ali (2023) is actively discouraging judges from sending people to prison, not least in congested post-Covid times. Most come out not wiser, but weaker.

    But let us also be conscious of the appropriate punishment for the massacre of the innocents.  Not all who claim a miscarriage has occurred are victims. There is a time for a liberal objection to a miscarriage of justice, and a time for when the punishment should fit the crime. Even the Norwegian prison system struggled with the serial killer Anders Breivik, who they had to build a special facility for.

    I wonder will certain lawyers, businessmen or lawyers ever see justice? Not likely, apart from a few subordinates thrown to the wolves. This was the pattern of our banking prosecutions. The rich can retain the best lawyers and engage in plausible deniability, and a chain of command.

    Thus, corporate lawyers, judges and businessmen, as well as puppet politicians, have the justice game rigged, up to the point where they commit murder. Then of course the system must react? This may become a pertinent question for Ireland in the coming months.

    Feature Image: Christian Wasserfallen

  • 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