LOOK AT EVIDENCE NOT INNOCENCE
Dr Hannah Quirk had the following letter published in The Independent UK (Letters, 20 October 2008) .
Michael Naughton's criticisms of the Criminal Cases Review Commission (letter, 13 October) are legally inaccurate as well as misconceived. Were the CCRC or the Court of Appeal to focus on the innocence of individuals, few convictions, including those of the Birmingham Six, would be overturned. In the absence of DNA evidence, innocence is almost impossible to establish. Instead the courts apply a test that is more generous to appellants of whether a conviction is "unsafe". Referrals and appeals should be based upon new evidence or argument, but section 13 (2) of the Criminal Appeal Act 1995 states that nothing shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it. A careful analysis of the evidence, and a correct interpretation of the law, offer greater safeguards to the interests of justice as well as those of individual appellants, than political posturing about innocence.
Hannah Quirk PhD, School of Law, University of Manchester.
The letter by Dr Michael Naughton referred to by Dr Quirk appears later in this email as Appendix A.
The original interview with Dr Zellick can be found in The Independent, Sep 27, 2008 entitled 'It's better that 10 guilty men go free than one innocent man be wrongly convicted' by Robert Verkaik, Law Editor.
An item in the SAFARI Newsletter Edition 60 November 2008 adds more information about Professor Graham Zellick’s statements and is copied below as Appendix B.
To me, Dr Hannah Quirk’s statements reflect much that is wrong with legal methodology. Dr Quirk says it is difficult to prove innocence but it is equally true that it is impossible to prove guilt if the only evidence is “circumstantial” or uncorroborated, but that doesn‘t prevent the courts so doing. Why then should an innocent party consider the courts to be generous if they are willing to label the defendant guilty but on review only willing to label the conviction unsafe rather than the defendant innocent? Science knows consistency is important, some lawyers seem equivocal on the matter.
Dr Quirk talks about the correct interpretation of the law, but everyone knows the US Supreme Court frequently has split verdicts like 6-3. Does that mean three of the top lawyers in the land don’t know their law or is “correct interpretation” an equally fuzzy notion?
It is quite unreal to suggest that the public does not consider justice more important than process and the letter in Appendix K (see below) would support that contention.
It is true the majority of people give little thought to miscarriage of justice, even though it could happen to any one of us. The average person’s reaction is that the chance is remote and to some extent it is. But that is because only a small percentage of the population find themselves in court. The problem only arises once you are there, as Bob Spink recognises (see Appendix C). Then you should be concerned because if the evidence against you is only circumstantial or uncorroborated, the jury’s decision may be no better than a straightforward gamble.
The science of that statement depends on only two values. The first is the percentage of convicted people who are innocent and the second the percentage of court cases where the evidence is not clear cut. Estimates for wrongful conviction vary from 5% to 7% (see Appendix E), so out of, say, 100 cases at least 5 would be wrongful convictions. The average percentage of cases that depend solely on circumstantial or uncorroborated evidence is harder to find. Hopefully it is no more than 10% of cases and then out of every 100 cases, 10 have the opportunity for the jury to guess wrongly. Ten cases could be wrong, five cases are and that is exactly the outcome you would expect from tossing a coin.
Dr Zellick’s claim that “It's better that 10 guilty men go free than one innocent man be wrongly convicted” has been made by lawyers for centuries but, as Barry Scheck (Appendix J) points out in his book, no statistics are collected about reversals of verdicts to examine the actual situation. Nor is any attempt made to ascertain the “exposed to risk” by identifying how many cases involve guesswork.
It is indisputable many innocent people suffer wrongly at the hands of the law. The discovery of further evidence has often revealed that and the advent of DNA testing showed how widespread it was. Added to that, when convicted people are exonerated on appeal, the authorities rarely pay compensation for either the time they spent in prison or the trauma they have suffered wrongfully (see Appendix F).
There is a large number of intelligent, educated people involved with this enormous ship of state known as the law. No doubt because it is so large it is difficult to change course. Surely you would expect there to be a few in positions of authority that would rebel at this lack of common decency. Lord Justice Judge’s comments at Sally Clark’s acquittal are the only hint of concern I know of from on high. It has found no resonance and nothing structurally seems to have changed. Indeed similar cases to those he warned against are still occurring (see Appendix H).
There is no independent investigation when the court process is shown to have convicted an innocent person, so nothing gets learnt. This uncaring behaviour of judicial authorities is the hardest matter within this analysis to explain. Even most organisations aimed at assisting those who might have suffered injustice like the Innocence Project (www.innocent.org.uk), the Bristol University activity led by Dr Michael Naughton and similar groups in Australia, the USA and Canada don’t appear interested in investigating the root cause of the underlying problem, with SAFARI (www.safari-uk.org) perhaps being the exception. This is surprising since some of the causes are quite clear.
(1) Jurors collude.
Jurors do not make their decisions independently. They are encouraged to talk each other around to one common verdict. Every other area seeking a valid measure of opinions puts much stake on ensuring independence of the sample. I believe it is only during my lifetime that majority verdicts have been introduced. Removing stray values from the data is not unsound in statistical analysis, but it is wrong to think a 10-2 verdict is what it appears to be, because of the collusion deliberately encouraged between jurors. It could be a verdict of 1-2 with one leader, nine followers and two independent thinkers.
The advantages and disadvantages of doctors putting their heads together is well illustrated in an article in the New York Times by John Tierney (9OCT2007) about diet. It is a study of the concept that if you are not sure yourself, you’ll go along with what you have already heard someone else say. As for ordinary folk, fashion and religion provide examples of how we are ready to follow a lead. In Mrs Sally Clark’s case it was the two dissenters who proved to be right. In Mrs Angela Cannings case all twelve jurors wrongly guessed that she was guilty and all twelve were eventually shown to be wrong.
That suggests it is the collusion more than the majority verdict that contributes to mistaken guilt. I believe scientists better qualified than myself might be able to demonstrate that an 11-1 majority verdict, but each juror deciding independently, would provide a more reliable conclusion. Perhaps more left-field than this, is whether the jury being present in the courtroom contributes to the likelihood of the most reliable outcome. Nothing that happens in the courtroom is really part of the evidence. All it provides is an opportunity for prejudices unconnected with the evidence - such as is the defendant black or white, tidy or dishevelled, appealing or unappealing, nervous or confident, etc. If the factual evidence is just listed for the jury to examine, how much more to the point would be their conclusion. Opinion by itself is inevitably one-eyed - or should I say one-headed. Anything a juror sees in the court only contaminates the facts of the alleged offence that happened elsewhere.
(2) Expert witnesses.
Expert witnesses are selected by the advocates and therefore represent the tails of opinion rather than main stream. This illustrates how the law jumps around fitfully with ideas. Whereas majority verdicts were introduced specifically to exclude the extreme values, expert witnesses are chosen by advocates from the extremes of available opinion to make their case as strong - and biased - as possible. Anyone with a modicum of knowledge of statistical science knows using the tails of the distribution of expert knowledge deliberately skews the information being presented to the jury. No advocate is interested in a middle-of-the-road opinion and anyone giving such evidence is unlikely to be employed as an expert witness again.
The court process doesn’t readily get the right answers. The combination of expert witnesses chosen for their often strongly-held personal opinions and prosecutors painting every trivial action of the defendant as black as possible inevitably skews the minds of the everyday folk on the jury. Prof Sir Roy Meadow was the doyen of such “expert witnesses” and was used by prosecutors in an incredible number of court cases until Britain’s GMC eventually revoked his medical licence. Professor David Southall met a similar fate.
The real problem is court advocates misusing such opinionated people. What motivates people to choose to become expert witnesses is worthy of some analysis (see Appendix G). The whole matter has recently (March 2008) raised itself again in the case of Keran Henderson (see Appendix H).
(3) Picking and choosing evidence and outcomes.
Two features of legal argument compared to scientific reasoning are selectivity and arbitrariness. Arbitrariness is well illustrated by those cases where there is one verdict in court, a different verdict in an appeal court and a different verdict still in the highest court. Even in the highest court, the lack of specificity in the law often results in split verdicts. It implies that legal correctness is an unknown quantity except to the chap currently wearing the biggest wig. In Australia, Pauline Hanson applied for bail until her appeal was heard three months later but the judge said the appeal wouldn’t reduce the sentence below three months and sent her to prison.
Three months later she was exonerated and to rub salt into the wound the legal authorities denied her any compensation for the wrongful imprisonment. If you dispute the word wrongful, I suggest you are a lawyer and if the application of law is so unpredictable that even judges can’t get it right, we are entitled to say that the legal profession needs a wholesale revamp. What is more it makes another favourite edict of lawyers to us citizens - “ignorance of the law is no defence” - clearly unreasonable.
Selectivity is exceedingly dangerous and the most obvious way in which a verdict can be decided first and the evidence claimed to support it second. One problem is that despite the court claiming the emblem of the scales of justice, there are no standards for weighting evidence and even mere hypothetical evidence can be used to override factual evidence. This was done in the Equitable Life Insurance case, the Sally Clark case and the Ian & Angela Gay case and is clearly a widespread practice in judicial decision making. The first appeal proceedings of Sally Clark is a classic example. A long list of everyday events were included as justification, each one of which added nothing measurable whatsoever to guilt.
One QC had the integrity to say the behaviour of the appeal judges was intellectually dishonest. These failures don’t occur in scientific reasoning because consistency of all the evidence is essential. What is more, even the eventual findings in the Equitable case were glaringly inconsistent because what they claimed to be doing for one party they were denying for the other. The Equitable case is illustrative of the way the court process can destroy rather than protect the interests of those involved. Everyone within the Equitable came out worse off and the only ones to benefit were the lawyers and the Equitable’s competitors.
(4) When is circumstantial evidence just normal coincidence?
When circumstantial evidence is involved, most judges are unlikely to have sufficient appreciation of the science of probability and the concepts of Bayes Theorem to advise the jury correctly when summing up [See Prosecutor’s Fallacy in Wikipedia]. The case against Michael Shirley is a particularly straightforward example (see Appendix D). A woman was murdered in Portsmouth and the best lead the detectives had was a shoe print. Armed with that they found that a Mr Shirley had bought a pair of shoes of that brand and that he was in Portsmouth on the day of the murder. They then found that his blood type matched that at the crime scene and ah-ha they found some scratches on his body. Take a note of what your conclusion is now.
Now consider this, you are trying to establish whether someone is pregnant. If you then discover that the person is male, then the probability is immediately established as nil. But if the person is female, are you any wiser as to whether she is pregnant? Similarly if Mr Shirley’s blood-type had been different, it would have excluded him from suspicion, but though it matched, it has not added any information about his guilt as millions of people in Britain have that blood-type. The scratches on the body were of course nothing more than a hypothetical connection typical of prosecutors and certainly devoid of any evidence of guilt. Nothing connected Mr Shirley forensically with the deed.
You have to be very careful to distinguish “could have” from “did” but the techniques of prosecutors regularly encourage “could have” to imply guilt. Lawyers know a lot about the texts of law books, they know a lot about how to persuade a jury to think along certain lines but they have little regard for the science of measured reason. As mentioned already, they regularly use the technique of accumulating a whole lot of everyday events that prove nothing about guilt and believe, or at least try to convince the jury to believe, that such a string of no value items can add up to something of value.
A lot of lawyer talk and the costume drama of a courtroom resulted in a jury convicting Michael Shirley of murder just because he owned a certain brand of shoes and lived in Portsmouth. He was guessed to be guilty. It was the advent of the discovery of DNA which can forensically identify someone in a quite precise way, that showed he was innocent after spending 15 years in prison. He was lucky, because he was one of the small number where sufficient forensic evidence had been retained. Without that chance happening he would have been seen by society for ever as a murderer.
Suggesting Mr Shirley is lucky is another travesty of justice by humankind, but how many other people convicted wrongly on circumstantial evidence have been even less lucky. The problem is nothing has been learnt from this and circumstantial evidence continues to be used to convict people who have a real chance of being innocent.
That totally innocent people can be convicted is indisputable. It would be strange if they weren’t when some cases are decided on guesswork. Some people are inclined to say you don’t know they didn’t commit the crime, but since that is tantamount to saying you don’t know they did, the matter becomes, is it any different convicting an innocent person from acquitting a guilty one? A scientific answer is simple because the contradiction in a court doing harm to a person when the court’s purpose is to protect people, breaks that important scientific requirement of consistency.
Some people think that protecting society is more important than protecting the individual, but they are making the same dubious interpretation of evidence as often happens in the courtroom, by allowing something that is hypothetical to override something definite. Something that might happen has to have very serious consequences to outweigh something that will happen. The wrong people are in charge of the scales of justice if they think “he might have done it” outweighs “we don’t know he did it”. Resenting a guilty person avoiding punishment so much that you are willing to let some innocent people suffer, I would suggest, needs a lot of justifying.
(5) A loaded dice.
You can add to the saga of Michael Shirley that he was really convicted because he could not prove he did not do it. Two more claims frequently voiced by lawyers are (1) that “you are innocent until proven guilty” and (2) that “it is for the prosecutor to prove guilt, not the defence counsel to prove innocence”. But when circumstantial evidence says you could have committed the offence, the onus falls on you to show you didn’t, so are they deliberately trying to mislead the general public? What is more, proving a negative is recognised to be more difficult than proving a positive. If you wanted to prove to me that you have been to Paris, you would probably show me a photo of yourself standing in front of the Eiffel Tower. How do you think you could convince me that you have never been to Paris?
The wiles of the prosecutor load the dice very much against you, as they can use a variety of techniques to influence the jury. One technique is to charge you with multiple offences knowing that jurors are often ready to look for a compromise. For example in the Western Australian case involving Jose Martinez, Sam Fazzari and Carlos Pereiras (31st March 2004 www.innocenceprojectwa.com/case1.htm), the jury were given the choice of wilful murder, murder or not guilty and settled for the middle one. Considering it wasn’t definite that Phillip Walsham was murdered and, if he had been, it was a tenuous thread that tied the three defendants to it, it is remarkable the jury should be asked to look into the heads of the defendants and decide between wilful murder and murder, whatever the technical difference is.
They were exonerated in 2007 (www.abc.net.au/news/stories/2007/07/06/1972096.htm Beyond Reasonable Doubt - Transcript). Similarly, in Ian & Angela Gay’s case the initial charges were murder else manslaughter. This combination is quite common and any betting man will know that murder, manslaughter or not guilty is not a level playing field. The anomalies in the Gay’s case went much further than that, as can be seen in Portia.org/actuary/“The Judge & Jury”. For example, the prosecutor was allowed to slur them with hypotheses.
The prosecutor alleged Ian Gay went home quickly from the hospital to concoct a story with his wife. Well there was no evidence that was his purpose and there were a lot of very ordinary reasons why he would return home to help his wife with the other two children they had care of. If you think hard about it, it was not an insight into the mind of the defendant but an insight into the mind of the prosecutor. But it is an effective technique and the malevolent, fictional slur on the defendant would stick in a juror’s mind and was prominently reported in the newspapers. Look how I noticed and recalled it. You have to ask yourself what motivates a prosecutor to behave in this underhand way. Is it a healthy mind that sees winning as more important than seeking the truth?
The judge behaved just as badly and said quite malicious things about Mr & Mrs Gay at their sentencing which were widely reported in the press. Remarkably - or not surprisingly - the silence from him was deafening when they were exonerated. The measure of wisdom is being conscious of what you don’t know and that is not a quality that is obvious in such people. As wise as a judge, like legal justice, is dangerously like an oxymoron. It is worth considering whether our education system lets us down, as it concentrates on testing us for what we know rather than encouraging us to be conscious of what we don’t know and to learn the consequent weaknesses in our opinions.
Like most of the judicial processes, the criteria for what information is allowed as evidence and what not shows more signs of history than science. While I think I understand the reason information about past offences is deemed inadmissible, even though factual, it is inconsistent that hypothetical smear type suggestions that are not factual can be put to the jury. Only previous offenders would be affected by the first, but the most law-abiding of people could be - and are - affected by the second.
(6) Playing games with people’s lives.
Laws should not be written so broadly that they can be used to get at individuals. Fortunately the final judges in the Pauline Hanson case behaved with unusual commonplace reasonableness and she was acquitted. It was however nothing more than a political stunt from the start. The case against the Chief Magistrate of Queensland (Di Fingleton) was an overkill for nothing more than a bossy nature and she was eventually found not guilty even if only on a technicality of the law and recompensed for her time in prison. I believe I am right in saying that the small insider trading deal on which Renee Rivkin was pursued actually resulted in a financial loss and while that is not by itself an excuse, the modest offence certainly doesn’t seem grounds to hound an individual into suicide. These repeated incidents on colourful individuals do not reflect at all well on the health of the judicial system.
Plea bargaining is another euphemism lawyers use. Unless you agree to plead guilty to some certain charge, then the prosecutors threaten to pursue you with all the possible offences they can devise. Ordinary people would simply call it blackmailing. That was one of the first problems the late Sally Clark faced and the prosecutors showed well and truly what they could do and she spent several years in prison before being exonerated. It helps criminals but is just more angst for the innocent. So even without capital punishment, the courts can still destroy people.
In a milder way, the dramatisation of the evidence in the “Who wants to be a Millionaire” case, persuaded a jury to make a finding that the most cursory scientific analysis would reject for inconsistency even on the balance of probabilities criterion of civil cases. It destroyed the wellbeing at least of Major Charles Ingram. In the school playground the misuse of power is called bullying and is frowned upon but the judicial process has no such qualms.
(7) Blurring the issue.
How can court cases extending over several weeks be justified? Does the prosecutor hope the mass of information will befuddle the jury so they become blind to the overriding conclusion that he has no incontrovertible piece of evidence that would resolve the matter with certainty more readily? It gradually becomes more about conditioning the minds of the jurors than presenting evidence. Is the wordiness of lawyers in the genes or is it a purposeful smokescreen to the truth?
The conclusion is just as obvious as the failings identified above. While most aspects of the western world have moved forward with leaps and bounds over recent times, thanks to scientific progress, the courts stand out as an exception. They embrace precedent and shun science and so that is not exactly surprising. The extremist nature of their resistance to change is shown when they also shun an investigation into the causes of each and every identified miscarriage of justice. Even in the wake of the Sally Clark affair which threw doubt on so many other cases, the Attorney General said there would be no enquiry and sadly no one challenged him and the courts have drifted back to their old ways. It is not healthy that such an important aspect of society can be so controlled by the incumbents for their own interests instead of for the good of the public.
I think it can validly be suggested that the judicial process is upside down. It starts with detectives searching out consistent evidence and ends with opinions. The scientific method starts with opinions and concludes with consistent evidence. That in a nutshell is why science is so reliable and the court process so unreliable. Drama and fantasy have a place in the theatre but a courthouse should be more akin to a dull testing laboratory so innocent lives are not put at stake.
I welcome correction.
Frank Ward, BSc, FIAA (fcamward@scs.brisnet.org.au)
www.slimeylimeyjustice.org
