THE JUDGE AND JURY
and the presentation of evidence
Can twelve different jurors find
someone guilty beyond reasonable doubt and all twelve get it wrong? It doesn't sound
feasible, yet it happens in the British, American, Canadian & Australian courts with
continuing regularity. The purpose of this article is to explore these errors using
a minimum amount of opinion and a maximum amount of science. The advent of DNA testing
revealed that something like 7% of convicted people are probably innocent. Since
some court cases are clear cut, it means the error rate is higher still in so-called
circumstantial evidence cases. You could then add to this figure those occasional
cases where a jury convicts but the decision is overturned on initial appeal. Now
you wouldn't fly in an aeroplane that had a small fraction of that failure rate,
so clearly something is seriously amiss. In case figures aren't your forte, with
a 7% failure rate, only half the pilots would survive to make their tenth flight.
It suggests that the judiciary only get away with it because huge numbers of people
fly each day but comparatively few get to sit in the dock.
Is it the jurors at fault?
From a statistical standpoint that seems highly unlikely to be a frequent cause.
Of course, the process of jury decision-making is different from scientific analysis.
Independence of the sample data is crucial to any scientific evaluation, whereas
jurors are deliberately encouraged to persuade each other to come to a unanimous
verdict, so it isn't actually twelve separate assessments. Even so, allowing for
the fact that some of us are easily led and some quite obstinate - and a few jurors
no doubt just keen to get home - it still seems statistically unlikely that a unanimously
wrong result should ensue very often.
You can imagine that a jury of twelve Daily
Mail readers may not be attuned to the way someone preferring the Daily Telegraph
behaves and such lack of peer review may lead to some misunderstandings. Again people
vary considerably in their ability to weigh up competing information in a measured
way. These misunderstandings however should only occur where the decision is essentially
opinion oriented rather than firmly based on clear cut and well corroborated facts.
It therefore suggests that it is the nature and quality of the information given
to the jury that misleads them.
Is it therefore the prosecuting counsels that are
at fault? Well, certainly some of their practices are dubious from a scientific viewpoint
and appear to be more aimed at leading and sometimes misleading the jurors rather
than dispassionately informing them. It is true the defending counsel can do the
same, but in common parlance two wrongs don't make a right and in statistical science
two extremes don't lead to a balanced view. One side painting as black a picture
as possible and the other trying to whitewash over it is no way to produce a true
picture. You might say counsels on both sides are only doing their job, though clearly
there is room for criticising the methodology that has devolved to them.
Is it therefore
judges that are at fault? Well some judges do allow a lot of surmise to be put to
the jury and then fail to highlight in their summing up which statements are factual
and which are mere hypotheses. In most of the questionable cases I've examined the
evidence has been skewed by the use of a liberal amount of invention by the prosecutor
about what might have happened overshadowing what is actually known to have happened.
It is made worse when a judge - probably once a prosecutor themself - leans in the
same direction. My previous observations in PORTIA (Science & Justice/January 2004)
about the cases of Mrs Sally Clark, Mrs Angela Cannings and Michael Shirley showed
clearly how judges and appeal judges did just that and failed each of the defendants
by not meeting the high standards of scientific evaluation of evidence.
The latest
case I've explored is that of Mr & Mrs Gay who were found guilty of manslaughter
in January 2005. Now there are a whole lot of good things you can say about the Gays
and you have to work really hard to interpret any part of their behaviour negatively,
yet the prosecution with the support of the judge managed to persuade a jury that
the Gays had killed their foster child. The only agreed evidence in the case was
medical evidence that the autopsy showed an excessive amount of salt retained in
the child's body but there was no evidence about how this had occurred and disagreement
amongst the medical witnesses about how it might have occurred. One way the judge
wrongly supported the prosecution was his failing to emphasise to the jury in his
summing up that the imagined scenario that the Gays had deliberately fed their child
salt was only an idea put to the jury by the prosecutor, not a known fact. Compounding
that, five times in his summing up to the jury Mr Judge Pitchers quoted Professor
Sir Roy Meadow's pronouncements that people punish their children by feeding them
salt (see Appendix C3). This is despite his being one of the appeal judges that only
a year earlier criticised the overly dogmatic evidence of Sir Roy (see Appendix B2)
and we will return to this inconsistency later in these observations. Then the judge
showed his hand again at the time of judgment when he said the Gays must have fed
the child several spoonfuls of salt, despite knowing this was only a hypothesis from
the prosecution, and clearly showing how his personal opinions had pervasively been
pressed on the jurors.
To normal people feeding a child salt seems a ridiculous suggestion
especially as all the real evidence showed the couple were trying to provide homely
care for the children. The judge would have an uphill task feeding my grandchildren
broccoli, let alone salt - and I would recommend he changes out of his best robes
first. See Appendix C2 for a journalist's report on the subject.
Sir Roy and a bevy
of judges seem to be responsible for more than their fair share of miscarriages of
justice. There was an incestuous arrangement between them - more serious still if
it were an insidious one - where Sir Roy lectured the judges on child abuse matters
and then gave evidence before them in individual cases. Hundreds of cases in fact.
Now the use of one expert witness in so many cases is cause for alarm. This was an
incredibly contrived process and you can well understand the bewilderment of the
defendants at what was happening to them, knowing nothing of the hidden activity
beyond the court room.
In 2005 Sir Roy was struck off the medical register by the
GMC (General Medical Council) as a consequence of his testimony in the Sally Clark
case. He appealed and a judge reversed that decision. No smirking please. Actually
I think it would be wrong for Sir Roy to take all the blame. He is a bit of a sad
character that allowed himself to be used. It is the prosecutors and judges who deliberately
misused him that are the real culprits, though unlike most people they cannot be
called to account for their actions.
The appeal judges in the Gay's case (Lord Justice
Richards, sitting with Mr Justice Penry-Davey and Judge Ann Goddard, April 2006)
made an error of yet another kind. In ordering a retrial, they said there was other
evidence apart from the medical evidence and then merely quoted the difficulties
the Gay's were having with the child. Now those difficulties aren't evidence of a
crime. All the judges are doing is hypothesising that it led them to harm the child.
But the idea that they harmed their child is itself only a hypothesis. Any one with
a minimal understanding of probability, knows that building one hypothesis on top
of another has rapidly reducing value and then calling it evidence is hardly a responsible
statement. It shows a lack of understanding of the principles of Bayes Theorem and
an incapability to evaluate probabilities and evidence in a measured way.
The following
judges have seriously let defendants down in ways referred to above.
Lord Justice
Henry, Mrs Justice Bracewell & Mr Justice Richards (Mrs Sally Clark's first appeal),
Mrs Justice Hallett (Mrs Angela Cannings case) and Mr Justice Pitchers (Mr & Mrs
Gay's case).
Lord Justice Judge seems to be the only one involved that acknowledges
that something is amiss, but he seems powerless to stop it.
It might seem a bit far-fetched
that an undistinguished person like myself can see certain things more clearly than
a long list of judges. However mine is not a lone voice. Even a QC described the
efforts of the three judges at Mrs Sally Clark's first appeal as "intellectually
dishonest" (see Appendix A). Personally I would prefer to say "intellectually incompetent",
since dishonesty implies you can read the judges' minds and claiming to understand
a person's thinking is far too common an assumption made in court processes. Was
the right-to-life advocate who murdered a doctor for performing abortions insincere
or just mentally blind to the obvious inconsistency of his reasoning? There is no
doubt that it is difficult for any of us to be aware of the gaps in our understanding
and there is much evidence that quite a few judges lack the skills of measurement
and the discipline of consistency that come with scientific training and scientific
analysis of evidence.
Law faculties at many universities have developed units exploring
miscarriage of justice in recent years (for example, Bristol & Leeds in UK and Griffith
& Bond in Australia) and organisations like Innocent.org.uk and PORTIA add individual
cases to their websites with disturbing regularity. So far, less work has been done
on the more general question of examining the fundamental causes and the means to
reduce future occurrences. That requires a science faculty to get involved.
The police
forces readily use science to advance their effectiveness. Forensic science does
the same. It is therefore incongruous that the final decision-making part of the
process refuses to embrace science. It is topsy-turvy that the final step in the
process puts opinion above demonstrable facts when all earlier stages put facts above
opinions. The Royal Statistical Society and other learned bodies have several times
made offers to assist the judiciary but have been repeatedly spurned. Of course all
elements of the process involve humans and occasional rogue policemen, scientists,
doctors, lawyers and judges are to be expected. However, for such a long list of
judges to be guilty of misrepresenting evidence points to systematic error rather
than roguery. One obstacle to getting the existing processes changed is the judiciary
are essentially accountable to no one and that has led them to a position, in Britain
particularly, of having no interest in change. We certainly don't hear the phrase
"as wise as a judge" as often as we used to and that is hardly surprising. Perhaps
the replacement adage will be "as uncaring as a judge".
At the successful appeal of
Mrs Angela Cannings, Lord Justice Judge, sitting with Mrs Justice Rafferty and Mr
Justice Pitchers, said: "If the outcome of the trial depends exclusively, or almost
exclusively, on a serious disagreement between distinguished and reputable experts,
it will often be unwise, and therefore unsafe, to proceed." (see Appendix B1). Only
a year later Mr Justice Pitchers was the judge presiding over the Gay case and the
solicitor John Batt points out the judge has completely reversed his position (see
Appendix C1). The inconsistency is reinforced by Mr Judge Pitchers quoting five times
in his summing up Professor Sir Roy Meadow's pronouncements that people punish their
children by feeding them salt (see Appendix C3), despite the judge being one of those
that only a year earlier criticised the "overly dogmatic" evidence of Sir Roy (see
Appendix B2), as mentioned earlier. There is certainly something very strange going
on here and the points made by Mr Batt also show the unusual vigour with which this
prosecution case was pursued.
I have a special reason to believe that Mr Justice Pitchers
was well aware of the criticisms I had made about the Cannings and Clark cases and
which now appear as "Science & Justice" in PORTIA. It contains the information that
I am an actuary and here less than a year later he has Mrs Gay, an actuary, in his
sights. Well there aren't many of us and being the first to nail an actuary as a
killer would be quite a feather in the cap of a prosecutor and perhaps a judge that
didn't take kindly to observations about their preserve from without. Now is this
what jurists call circumstantial evidence? Believe me, the chance of an actuary criticising
judicial processes quickly followed by the judicial process pressing murder charges
against another actuary is very small indeed and not just by Sir Roy's standards.
Of course most of us would see it as just a coincidence, but the probability they
were related could be measured greater than: (1) concluding difficulties the Gays
had with a child and a high salt level in a child meant the child was deliberately
fed spoonfuls of salt - or (2) putting Michael Shirley in prison for sixteen years
because he owned the same brand of shoe and had the same common blood type as the
real killer.
There is an article in Chapter 1 of PORTIA on "Judges & Barristers" that
refers to the hate, spite and vengeance industry. Let's be generous and just say
that while the clergy are preachers of forgiveness, the judiciary are not unhappy
with a bit of vindictiveness. You wouldn't want to have much compunction to be a
hangman and the courts are clearly only one step away, so black humour might be to
their liking and we might claim this adds a motive in their combined attack on the
Gay's. It might explain Mr Batt's puzzlement that "There are all sorts of pointers
suggesting something terribly wrong with this verdict." (see Appendix C1). A motive
was noticeably lacking in the Gay and Shirley cases. It is still just a hypothesis
but, as you see, it is just what some prosecutors and judges mislead jurors into
thinking is evidence and it would show how out of control the profession has become.
Now I would hate to believe that I had contributed to the aggressive way that the
Gay's were prosecuted. Unlike some jurists, I would feel very concerned had I caused
someone needless harm.
Prosecutors use "tricks of the trade" to get the jury to decide
their way and plenty were used in the Gay case. The medical evidence was inconclusive
so the game was played out giving innocuous day-to-day happenings a malevolent interpretation
and imaginary scenarios were invented to capture the minds of the jurors. The principle
that if you throw enough mud, some will stick, is hardly worthy of a court room.
There is also a hint of sexism since if the husband had been the bread-winner, the
same criticism of callously going back to work is probably much less likely. There
was even an attempt to pin murder on them though the alleged evidence for that occurred
while the child was in hospital care. It was dropped halfway through the trial, but
it had done its job, as another popular technique of prosecutors is to get the jury
thinking about three options - in this case not guilty, manslaughter and murder -
knowing that humans have a preference to choose the middle ground. The choice acts
as a useful distraction from the actual evidence.
The judge was complicit in this
device by not requiring a fresh trial and by allowing the murder charge to be introduced
in the first place. Invented evidence, sexual discrimination, harassment - do these
prosecutors and judges know anything about the current laws of the land? The Sally
Clark and Angela Cannings cases followed this same pattern. The culprits aren't Sir
Roy and other rogue expert witnesses, it is the barristers that play on the weaknesses
in the system and judges that have no qualms about juries being misled. As people
know, if you feed a computer rubbish, what comes out will be rubbish and the same
principle applies to juries.
While writing this, the ABC (the Australian version of
the BBC) ran a documentary about a case in Western Australia entitled "Beyond Reasonable
Doubt" (July 2006). It is another classic example of how imprecise the court process
is and illustrates how such practices are going on all the time. The jury made a
finding of finesse that the accused were not guilty of wilful murder but guilty of
murder, suggesting they clearly understood the thoughts in the defendants' minds
when the deed occurred. At the same time they were making broad-brush leaps of faith
as there was no clear evidence that the victim had actually been murdered and then
incredibly tenuous, so-called circumstantial evidence, that if there had been a murder,
that the defendants were the perpetrators. What quality of summing up by the judge
could have led to such self-contradictory findings by twelve different people? Once
again the prosecutors used the technique of giving the jury three options to distract
them - not guilty, murder and wilful murder - knowing that when guesswork is involved,
humans have an inclination to choose a middle ground. Further pressure was put on
the jurors by making them continue their deliberations through the weekend. More
references to this ABC documentary appear in Appendix D. PORTIA has an article in
Chapter 12 about criminal justice in South Australia and it is amazing that so many
intelligent people are pointing out the failures in the system but nothing changes.
There is no doubt there are many opportunities for a judge who empathises with the
prosecution to influence the jury and clearly this is done, despite the impression
of impartiality in their fine rhetoric.
One fundamental question is what does "beyond
reasonable doubt" mean and why don't they just say "beyond doubt". Is it a deliberate
encouragement to use personal feelings and prejudices rather than the factual evidence?
The judiciary know it is just playing with words because Mr Justice Owen in July
2000 told a jury "you don't have to be certain, you only have to be sure". Even the
subtlest of dictionaries can't find a difference between the two and you can only
conclude the judge was trying to push a jury in a certain direction by implying there
is a measurable difference, when there is none. So "reasonable doubt" is just another
court practice that distracts the jurors from simple concentration on the known evidence.
If
the prosecution evidence in a case doesn't come down to one or two unassailable facts,
it stands a good chance of being a medley of half-truths and rich in innuendo. Indeed
the strength of a prosecution case is likely to be in inverse proportion to the time
the case takes to present. After a certain time it becomes a maze of unmeasured ideas
and unsorted information and suspiciously like yet another technique aimed at befogging
the minds of jurors.
Jurists are quite fond of catchy sayings like "a defendant is
innocent until proven guilty" which are fine words but not matched by deeds, as is
so clearly seen in the cases of Mrs Sally Clark, Mrs Angela Cannings, Mr & Mrs Gay
and the hundreds of cases held in private using the secrecy provisions of the family
court. All of those people had to prove their innocence.
Another catch-phrase they
are fond of espousing is "it is better that ten guilty people go free, than one innocent
person be convicted" and yet again they are fine words not matched by deeds. Tony
Blair and other politicians complain about the judicial process letting criminals
avoid conviction. It is part of their own patter in the law and order argument. I
understand that the number of people sent to trial and acquitted is around 5%, which
is less than the estimated 7% wrongly convicted, so the odds are not ten to one,
but less than one to one, even if all 5% were actually guilty. Why don't the politicians
speak out about the even bigger problem of innocent people wrongly convicted. The
same solution, more science in the final decision-making process, would help both
problems.
I suggest there is ample evidence here to say that far more reliable results
could be expected if the people holding the pivotal role in the scales of justice
had a mental capacity to measure and weigh evidence rather than being expert wordsmiths.
If judges are expert meaning-smiths too, then wearing woolly-headed attire suggests
they have a great sense of humour.
I rest my case m'luds.
Frank Ward (fcamward@scs.brisnet.org.au)
www.slimeylimeyjustice.org
