Hold Fast to the Traditions and Institutions of Liberty

In Defence of Juries

Why juries?  They appear to be a peculiar anglo-saxon institution, at least in terms of their origin.  Every so often a talking-head stands up to suggest there has to be a “better way”.  The assessment of evidence and the determination of guilt would surely be better served by those trained to evaluate evidence and reason to a sound conclusion.

Juries necessarily reflect the general state of society at large.  That is offered as one of the great benefits of juries: it is a trial of one’s peers.  That is one of their perceived benefits.  Juries are not made up of elites who control just about everything else.  But that also means that if education standards in society generally fall and folk are unable to reason clearly, let alone articulate, juries risk falling into a situation where they are little more than corporate expressions of brute prejudice, self-righteous sanctimony, and general ignorance.  We have served on juries and have “insider” knowledge, so to speak.

Yet, strangely enough, more often than not–by a long, long shot–juries get it right.  Their decisions reflect not just the evidence, but its weight.  Yet, this alone, is not the sole argument for juries.  There is a far, far more important principle at work (which, more often than not, contributes to their effectiveness).  Peter Hitchens puts it this way:

The jury is more noble in theory than in reality.  There is nothing especially elevating in the sight of twelve people crammed into a room trying to decide whether to ruin a fellow human being’s life.  Yet for once, the idea is more important than the practice.  As long as these strange committees continue to exist, governments are less powerful and citizens are more free.  [Peter Hitchens, The Abolition of Liberty: the Decline of Order and Justice in England (London: Atlantic Books, 2003), p.180.]

Checking the power of governments and buttressing the freedom of citizens is a worthy, Christian principle.  For that alone, jury trials are a wonderful Anglo-Saxon institution and a definite contributory institution to the emergence and growth of the first Christendom.  Power corrupts and always needs checking and limitations.  Amongst humankind, the state is the highest and therefore the most minatory of all human institutions.  It has the power to kill the body.  Whilst ordained as a minister of God (Romans 13: 4,5) in corrupt times and hands it can wreak (and repeatedly has wrought) destruction and havoc.  Therefore, the institution of the jury is not just a national treasure: it is vital to our collective future.  Hitchens explains how this works:

Two things happen to trails when a jury is present.  First there is the element of doubt about the outcome that is quite beyond the control of the state.  This turns the presumption of innocence from a mere slogan into a real possibility.  Some on the jury may actually be prepared to believe that the police have the wrong man.  Secondly, the prosecution’s huge advantage over the defence is greatly reduces.  The defence is not an interloper among officials but one of the two contestants before a panel that owes nothing to either side. (Ibid.)

The jurors are the gods of guilt; before them the state must (figuratively) bow.  Ergo the godly state will defend the institution of the jury with the fury and tenacity of a she wolf defending her young. If she were to fail, the future of her cubs would become decidedly bleak.

In a criminal court, the powers have been carefully divided–at least in our Christian tradition.  The judge (representing the Crown, and therefore a power of the State) will decide on matters of law.  The jury will decide on matters of evidence, as to guilt or innocence.  The authority of the judge with respect to the law is limited and checked by the institution of the appeal to wider and higher courts.  The authority of the jury is limited and checked by the very high standard of proof required viz a vis the evidence: the matter must be proven “beyond reasonable doubt”. 

The alternative is not just sub-standard, it is positively dangerous. 

Without a jury, the legal process is like any other government action. Strip the process of arrest, trial, conviction, sentence and appeal down to its basic parts and it is quite simple.  A series of state employees, few of them especially brave or intelligent or perceptive, are asked to approve the original decision of another state employee.  The chances are strong they will do so at every stage, and will feel that this is what they are paid to do.  [Hitchens, op cit., p. 181.]

And, we may add, these government functionaries are not just paid to support their employer, but most are career employees.  To oppose, to diverge, to act the contrarian is likely  to become a career limiting move–and that right quickly. The presumption of bias and prejudice on their part is necessarily conclusion to be drawn by anyone who understands the human heart and the fallibleness of mankind and yet insists upon liberty for man as the image-bearer of God Himself.

One argument against juries persistently put forward is the limitations of many people that serve on juries.  As noted above, we have experienced it first hand. But this argument proves far too much, to where it actually becomes a telling and convincing argument for the institution of the jury.  Every observation to be made about the limitations and cant of jurors can be multiplied several times over when it comes to politicians, career bureaucrats, and ambitious state-functionaries.  In addition, every argument about the cant and limitations of jurors applies equally well to the democratic system itself.  If jurors cannot be trusted, neither can voters. 

Jurors might well have their weaknesses, but in comparison to the alternatives, they positively shine like beacons upon a dark, sinister sea. 

Justice No Longer Blind, But Partial

Taking Care of One’s Own

In New Zealand we allow judges to suppress the names of convicted offenders and their victims.  Originally this was introduced to allow the court discretion to protect victim(s) and their families.  Within a short space of time it has morphed into something quite degraded, if not sinister.  Certain judges have taken it upon themselves to decide whether the penalty of the public knowing the name of a convicted criminal would be unduly severe because they were “important” people.

What sort of people would be so regarded, we hear you ask?  Well, celebrities for one.  They would suffer too much harm from having their names and guilt disclosed, so they have been granted name suppression.  You know, upstanding, important folk like Rolf Harris.  Once name suppression has been granted, to mention their names in public, whether on a blog, or in the media, or at a social gathering risks the ire of the court.  Then there are sports people who are professionals and therefore in the public eye.  They too deserve name suppression.  Then there are pollies, well-connected people, “pillars” of the community–all these  in the calculus of some justices apparently deserve name suppression and having their guilt and offending kept secret.

One gets the distinct impression that these perverse elitist justices think that all whom they regard as their peers ought to enjoy such protection.
  But as for common garden, everyday criminals that’s another story.  These brown-skinned, low-lifes don’t have any public standing or reputation to protect.  They are not like us.  They deserve everything they get.

We have just witnessed an additional perversity.  Some of these cosseted protected criminal aristocrats brazenly use their court ordered anonymity to advance their careers and to provide opportunity for further criminal offending.  Once again, think “Rolf Harris” and “Jimmy Saville”.  Rodney Hide details the case of one such.

I was wrong when I claimed that leading politicians knew the name of the “prominent” New Zealander hiding behind name suppression. David Cunliffe did not.  The Labour leader has met the sex predator. “If I had known of the suggestion [that the man was a sex predator hiding behind name suppression], no such meeting would have taken place.” I am sure that’s true.

The meeting highlights two key points. First, there’s no shaming without naming. The offender remains brazen and without remorse. He happily and openly met the Leader of the Opposition who had just loudly and boldly spoken out against sexual violence.

You think he would be too ashamed. But no. Name suppression thwarts justice because the offender has never had to own up. He can carry on like nothing happened. He can have a joke and a laugh with the leader of the Labour Party exactly as if he had never performed an indecent act on a woman in her own home. Oh that his victim could just share a joke, have a laugh, or meet the leader of the Labour Party.

Second, the meeting highlights the danger to which name suppression exposes women.

The sex predator’s prominence is such that Cunliffe was attracted to meet him. Knowing the sex pest’s background and history it’s easy to see why. We are all attracted to and flattered by the attention of “prominent” men.  And so, blithely unaware of the man’s offending, Cunliffe met him. The result was a slight political embarrassment.

But consider the danger the man poses to women. If Cunliffe with his campaign staff and parliamentary resources – and his ear to the ground – didn’t know of the man’s attack, what chance have the rest of us? And women can be just as easily attracted and flattered to meeting a “prominent” man as was Cunliffe. But they are at risk of far more than political embarrassment. We drop our guard with “prominent” people. We expect them to be better than that. We feel as if we know them and that we can trust them, just like we felt we knew and could trust Rolf Harris.

We have a sex offender in our midst. He has not been shamed. He has no remorse. His prominence makes him attractive for women to pass time with. Name suppression means they don’t know to be wary. His “prominence” means women drop their guard.

Does anyone other than the offender have a responsibility should he offend again? The judge who felt the poor man had suffered “a bit of a cross” by being prosecuted? Our MPs for their silence and name suppression laws?

What would we say to his victim if he attacks again? And, ask yourself, what’s the culture in New Zealand that your answers imply? [NZ Herald]

We would suggest one small amendment to the law allowing judges to order name suppression for convicted criminals: if the anonymous criminal were to re-offend, and the offence were deemed to have been enabled or facilitated by their court-awarded name suppression, then the judge concerned must be charged with aiding and abetting a criminal offence.  That would clean up a nasty little judicial mess that our politicians and elitist judges have created, very quickly no doubt. 

The Christian Heritage of Justice

 Being Treated Fairly Before the Court

It is a great boon to live in a just society–and, no, we are not thinking of the faux “justice” of egalitarianism, now so very popular amongst the ignorant and those riddled with the canker of envy.  Rather, we have in view the system of justice which enables citizens to seek redress or get their actions judged properly and fairly.

Justice is often difficult to define. The traditions of English common law, however, have developed over many centuries the concept of a fair trial and the principles which undergird it.  F.E. Dowrick [Justice According to the English Common Lawyers (London: Butterworths, 1960)], courtesy of a series of lectures by Lord Denning, has provided a summary of the essential principles which make up a fair trial.

1. The judges should be absolutely independent of the Government.

It is of the essence of fair trial that the judge should be dependent on no man who can by any possibility become a party to a proceeding before him, so that he can adjudicate evenly between the parties–whether these are private citizens or whether a private citizen is opposed to a government official or to the government itself.  And in jury trials the absolute independence of the jury is no less important than the independence of the judge.

2. The judge must have no interest himself in any matter that he has to try.  He must be impartial.  No person can be a judge in his own cause. 

3. The judge, before he comes to a decision against a party, must hear and consider all that he has to say.  No-one ought to be condemned unheard . . . . (T)he only fair way of reaching a correct decision on any dispute is for the judge to hear all that is to be said on each side and then come to his conclusion. 

4. The judge must act only on the evidence and arguments properly before him and not on any information which he receives from the outside. 

5. The judge must give his reasons for his decision.

6.  A judge should in his own character be beyond reproach, or at any rate should have so disciplined himself that he is not himself a breaker of the law. 

7.  Each side should state its case as strongly as it can . . . (since) truth is best discovered by powerful statements on both sides of the question. 

The search for the truth of the matter before the court is of the essence of a fair trial but counsel must contain themselves within bounds: accordingly they “must never distort or suppress the truth”, and in criminal cases counsel for the prosecution should act “not as an advocate to to condemn the accused, but as a minister of justice to see that he is fairly treated. 

This list is not exhaustive, but it captures the essentials, such that if any of the seven be lacking, the centre of justice through a fair trial will not long hold.   

Heads Must Roll

Pam Corkery’s  Calls For a Committee of Public Safety

Pamela Corkery, opinionated provocateur, has chosen an unfortunate turn of phrase writing about a hot public controversy presently incandescing the pages of our newspapers.  Some under-age girls have been allegedly date-raped by young men.  The police have not yet charged anyone.  Pamela has called for “heads to roll”, apparently oblivious of the historical reference to the horrendous Reign of Terror. 

Maybe Pamela  forgot the connection.  Or maybe she does not care.  Or maybe she is ignorant.  Or maybe like a true people’s demagogue she finds nothing offensive, unjust, or distasteful in seeing innocent heads roll from the guillotine blades into the tumbrels? 

Whatever the case, it does seem that Pamela has chosen to overlook the minor matter of evidence, witnesses, and proof beyond reasonable doubt in matters criminal and judicial.
  We know these are relatively trifling matters in the world of demagoguery.  But more balanced people might have a different view.

But Pamela persists.  Asking girls to come forward to testify as witnesses in a court case apparently amounts to placing the responsibility for crime-solving on  the victims.  This responsibility, shrills Pamela, is not the girl’s at all.  It belongs to the authorities. 

This still leaves the onus for crime-solving with a still unknown number of teenage girls in Auckland.  Fail. Girls don’t attack themselves. Bringing their attackers to task is the responsibility of official grown-ups.

Wow, good point.  So, let’s get this straight.  It turns out there are unsolved murders in New Zealand.  The cases are still open, never having been closed.  By Pam’s demagogic reckoning, select police, politicians, and bureaucrats should have their heads in the tumbrels for irresponsibility and failure.  No doubt she will soon be calling for a Committee of Public Safety to ensure that officials and “grown-ups” are appropriately decapitated.

Imagine justice in Pam’s demagogic world:  

Judge: I will now call upon the Crown to put its case.

Prosecutor (addressing the jury): We are convinced that the defendant is guilty.  He is a loathesome creature.  Just look at him. 

Judge: Do you wish to call any witnesses?

Prosecutor: We would like to, your Honour, but we will not be calling any witnesses today.

Judge: Why might that be?

Prosecutor: We don’t have any.

Judge: Why not? 

Prosecutor: Well, sadly, the grown-ups did not provide us with any witnesses, your honour. 

Judge: Well, get those lazy, incompetent, defalcating grown-ups in here, so I can sentence them appropriately.

[Enter senior police officers, detectives, the NZ Police Commissioner, and the Minister of Police]

Judge (addressing the police officers): The court understands that you have failed to provide any witnesses to prove the defendant guilty beyond reasonable doubt.  The Corkery Committee for Public Safety is calling for heads to roll in such cases, and it shall have them.  You are hereby sentenced to death by decapitation at dawn tomorrow.[Cheers from the public gallery]

Judge (to the accused): You are acquitted.

Alice’s tribulations in Wonderland had nothing to top Pamela’s view of justice. 

A Sad Passing

In Memoriam: Greg King

The Christian world-view has a deep respect for defence lawyers.  To some this may come as a surprise, since often Christians are critical of governments and societies which no longer believe in retributive justice. How can these two positions be held in the same world-view?  Substantially both views are downstream currents flowing from a deeper truth: the universal depravity of the human race.

Usually, when Christians mention such a belief folks left, right, and centre become profusely vituperative.  They splenetically disgorge nonsensical accusations about Christians being “haters of the human race” (an ancient charge, being first recorded by Tacitus to justify Nero’s persecution of Christians). But a moment’s honest reflection usually suffices to set the record straight.  Who amongst us has never lost his temper?  Who has never told a lie?  The fact that such evils are so ordinary and commonplace as to be regarded as trivial and minor matters amongst us is proof of the universal extent and depth of our common depravity. 

Thus, Christians take crime and its right punishment very seriously.  But at the same time, the Christian world-view values highly competent, highly skilled defence lawyers.  How can these be reconciled?  Very easily.
  Depravity extends not just to individuals, but to everything in which human beings touch and do.  This includes the offices of state and the government.  These, too, are subject to the ravages of human depravity.  Because the state wields the sword, the damage it can inflict by acting wickedly or wrongly is enormous.  We cite Nero as proof.  Professional and expert defence barristers are a goldmine.

Consequently it was with sadness that we heard of the passing of one of our more diligent, assiduous and conscientious defence barristers.  Greg King died a year ago–by his own hand, as the recently released coroner’s report makes clear.  Stuff reports:

Top lawyer Greg King took his life, depressed, burnt-out, and haunted by the dead from the cases he had known.  Coroner Garry Evans has released his findings into the death of King, 43, whose body was found on November 3, last year, in Dungarvan Rd, Newlands, Wellington, not far from his Mercedes car.

In the car was a typewritten note that began:  “To everyone: How can I explain the unexplainable?”  It said that after nearly 20 years as a defence lawyer he was burnt out, disillusioned and depressed.  “He says he is haunted by the dead from his numerous homicide cases and hates himself for what he has done,” Evans said.  “He says he has been genuinely torn between doing his job and his conscience, which keeps asking him ‘Is this really what you want to be doing?'”

In his finding, Evans mostly paraphrases the note in which King spoke of the experiences with criminals that had dulled his human senses and the victims of serious crime who affected him profoundly.

King cared deeply about the victims of crime.  It is not often seen that the Sensible Sentencing Trust deeply regrets the passing of a defence barrister:

Sensible Sentencing Trust’s Garth McVicar said New Zealand had lost one of the greatest men he had the good fortune to meet.  “Greg gave his time willingly and freely to assist many of the families and victims within the wider Sensible Sentencing Trust family,” Mr McVicar said.  “Greg’s knowledge of the law, his passion for people from all walks of life and his drive to leave society better than he found it was unique and irreplaceable.”

Is it possible for a defence barrister to be instrumentally responsible for the guilty escaping conviction, one the one hand, and yet be committed to helping the victims of crime, on the other?  Only with great difficulty, we would imagine. Surely one would be torn in two–which is apparently what happened with King–unless one also believed that justice in this world is not final and that everyone, in that Day, will face full and final justice in one way or another. 

In memory of Greg King who passed from the sight of mortal men, November 3, 2012.

The New Jacobins

Banish One Demon, Inherit Ten More Malevolent

Why should New Zealanders treat the law, the courts, and the justice system with any respect from this time onwards?  It appears they are about to become a sick joke.  The government has announced it will change the fundamental concepts of justice so radically that if a person is suspected of a crime the courts can restrict their lives so as to place them in a virtual prison.  Even if the person went to court, was exonerated and freed, they will be able to be punished by the courts, nonetheless. This from the NZ Herald:

Wide-ranging restraining orders will soon be in use to keep suspected child abusers away from children for up to 10 years.  Some will be prevented from going to parks or public swimming pools. . . . High Court and District Court judges will be able to impose the new civil orders on people who are tried for serious offences against children such as incest, sexual grooming or sexual violation – even if they are not convicted of the offence.
Ms Bennett said the scope of such orders would depend on the circumstances, and could prevent the person from living or working with children, up to blocking any association with children whatsoever, such as sitting next to a child on the bus.

What happened to “innocent until proven guilty”?  Oh, that’s so outdated, dearie.  We are going to get really serious about crime.  Now the judges can place restraining orders on individuals based on suspicion.

Spare us.  How myopically stupid and unjust can government become?  What this wonderfully progressive lurch does is establish a new principle of gross injustice: whatever crime society finds particularly odious or egregious can be put in a special category of  imposing state restraint on the grounds of mere suspicion.  How Stalinesque.  Koba the Dread would have loved this. 

Prime Minister John Key said the changes were the result of a two-year process and would be “significant and bold”.  

And stupid.

Yes, we all know that child abuse is a terrible crime.  But unjust preventions that ride roughshod over fundamental principles of justice are equally terrible crimes.  If the justice system has delivered unsafe convictions in the past, even after a trial–as a result of abuse of the system, or incompetence, or prejudice, or whatever other inadequacy–do we think for a moment that this new “reform” with lesser checks and balances, lower standards of proof, and proceeding on the basis of mere suspicion (in some cases after a non-guilty verdict) will be free from perpetrated abuse and gross injustice?  It will be ten times worse.

This is the inevitable outcome when fallen revolutionaries assume the prerogatives of deity and by command attempt to remove evil from society.  One demon is thwarted, only to be replaced by ten demons far more evil and malevolent.

Douglas Wilson’s Letter From America

On Spiraling into Chaos

Posted on Tuesday, July 16, 2013  

by Douglas Wilson

The trial of George Zimmerman is now over, and there are perhaps a few things we can learn from the whole sorry mess. Perhaps.

In the aftermath of this trial, we clearly have a highly polarized society. On the one hand, we have those who believe that a young and unarmed black man was targeted and killed simply because of his race, and who believe the “not guilty” verdict is therefore a travesty. On the other hand, we have those who believe that he was a young black man up to no good, and that he was the aggressor in his fatal encounter with Zimmerman. They were relieved at the verdict.

The reason we even have trials is so that we have a ordered substitute for what such polarized societies would do in the absence of trials. What they would do is fight, riot and kill. In advanced cases of this pathology, they go to war over such things. The function of trials is to dampen the ardor of factions, crowds, and lynch mobs, not to inflame them.
The irony is that Trayvon is now being compared to genuine lynch mob victims, and the comparison is being made by crowds outside the courthouse, away from the evidence presented in a rule-guided setting, but nevertheless demanding the conviction of an individual for political reasons.

That is what a lynch mob is — a large group of people who have not thoughtfully weighed the evidence in a dispassionate setting, but who are consumed with the righteousness of their cause, and who demand a conviction that will consequently satisfy them. Lynch mobs get away with what they do because they are popular. It takes courage to stand up to a lynch mentality, and it takes courage because the current of opinion runs heavily against the accused. When whites were doing this to blacks a few generations ago, it took courage for a white man to stand up to them. Why did it take courage? The same reason it would take courage now. The color of the jerseys can change, but people are always people, and the game is the same one.

Whenever someone is tried and acquitted, as Zimmerman has been, it is beyond offensive to continue to orchestrate political pressure in order to keep trying him until we find a venue that will give us the “right answer.” Our double jeopardy protections are there for a good reason, and the right of a convicted man to appeal, while restricting the right of a defeated prosecutor to do so, is grounded in biblical law. It is of the highest order of importance that political passions be kept out of the courtroom.

From the beginning, this sad and unhappy episode was force-fit into a preexisting narrative, and the longer those efforts went, the more lame they became. But because people on both sides don’t always think carefully, some sympathetic to Zimmerman don’t realize that there is a grounded reason for the pent-up frustration. It doesn’t come from nowhere. The fact that this particular incident did not fit the preexisting narrative does not mean that such a narrative is itself mythical. I am confident that many of my black brothers can tell me of numerous times when they were pulled over for “driving while black.” How to handle that kind of thing is the conversation that Al Mohler has never had to have with his son.

For myself, I believe the Zimmerman was kind of hyper, and showed very poor judgment in going out of the house to check on Martin with a loaded gun. But being hyper is not first degree murder, and showing poor judgment is not racism. I am grateful he was acquitted, not because I want him to be the guy to organize and run the Neighborhood Watch where I live, but because I care deeply for the rule of law. Trials matter, and juries should be honored — particularly this jury. I am also grateful that Martin’s parents called for the protests to be peaceful, and I am grateful for that for the same reasons — respect for the rule of law, and a desire to avoid the kind of behavior that will cause us all to spiral into chaos.

Polarized societies want to push toward a simple binary world, where the variables are open and shut, black and white, this or that, our team or their team. But the real world is far more complicated than that. Some have argued that Trayvon would not have aroused Zimmerman’s suspicions in the first place if he had been white. That is quite possible. But I would also argue that he would not have aroused Zimmerman’s suspicions if he had been black, and was walking through that neighborhood in a jacket and tie. And it is equally true that a young white male is fully capable of decking himself out in a way that would arouse the suspicions of every sane person. Skin color is not the only thing going on. You have factors of age, sex, the music pumped out of his car as he pulled up, dress, gang tattoos, behavior . . . and yes, race.

Because of the nature of the question, I am not going to ask for a show of hands here, but I am going to ask you to be brutally honest with yourself. You don’t have to tell anybody how you answered this thought experiment. You are the owner of a jewelry shop in a city, the kind of shop that has bars on the windows, and a buzzer lock to let people in on a case-by-case basis. It is five minutes until closing and a solitary individual shows up at the door. Do you buzz them in? You might say, it depends. Great. On what? Be honest, and whatever your answer is, be sure that you stop condemning others for doing in public what you would do in private.

One of the most insightful tweets I read on this was to the effect that we had a situation where a Hispanic killed a black man, and was acquitted by a jury of all women, and the whole thing is somehow the fault of white men. That is what a cultural breakdown looks like, and that is a threat to all of us.

Sclerotic Incompetence

In Memory of Murray Wilkinson

The Justice system in New Zealand has some huge holes in it.  On the eighth of January, NZ police arrested an 18 year old man and charged him with the murder of an expat Kiwi, who had returned for his summer holidays to Waihi, together with his family.  It had all appearances at the time of a random, senseless murder.

For the victim, Murray Wilkinson and his family it still appears that way.  But now it emerges that the accused was, at the time, out on bail.  Once again we see the devastation that can arise when people arrested and bailed for serious criminal are allowed out on the streets, prior to their trials.  Lawyer and former politician, Stephen Franks documents some of the inanities and failings and blameshifting of our judicial system:

The 18 year old charged with murdering Murray Wilkinson outside his Waihi caravan applied for bail again yesterday. Bail was denied but I’m told that his QC indicated he would try again.  The accused has name suppression so we can’t learn the truth about him but if today’s judges had half the common sense of previous generations’ such an application would be unthinkable. . . .

Judges could at least make it clear that offenders who show their lack of remorse with stupid applications will have that insolence reflected in the eventual sentence. Lawyers, whose duty it is to make such applications whatever their personal view of them, could then explain that offensive procedures are only worth the risk for defendants who are confident of being acquitted. . . .

 The accused in Waihi can’t be blamed for expecting courts to be indulgent – he was apparently free to hurt fresh victims on New Year’s Eve because he was out on bail on charges for incidents some weeks earlier and six months ago.

Judges have allowed our system to become so constipated that a six month old charge remained unheard. Even our generation’s judges should feel they can’t justify giving bail on a third charge (of murder) but who knows?. Mr Wilkinson may have paid the price for previous indulgence, not the judges.

Judges are using the constipation of the court system to justify granting bail to those accused of violent crimes.  Sitting around six to nine months in prison waiting for a trial amounts to cruel and unusual punishment.  Fair enough.  Then judges ought to do what they can to ensure that the system does not get clogged with the repeat offences of violent criminals whilst out on bail–by making frivolous applications for bail have a cost to the one being charged. 

Moreover, bail should be far, far harder to get granted, particularly when people are before the courts charged with violent crimes.  There is now in New Zealand a long litany of victims, some now dead, who have suffered at the hands of people charged with violent crimes, yet allowed out on bail–freely to roam and devastate others at will. 

The judicial system and the parliamentarians have demonstrated repeatedly that they are incapable of changing the system for the better.  Its time for the people to apply their common sense and demand change via the ballot box and all other lawful means.

Long Time Coming

A Reasonable Judge

There has been a succession of judges in New Zealand who seem to have the view that holding a judicial power to bail constitutes a duty to bail.  This infantile mistake has undermined the judiciary.  It has also led to innocent people being assailed by violent men and women who were out on bail awaiting trial for previous arrests.  In some cases this had led to tragic and completely preventable deaths. 

In the Auckland District Court we now have a judge who appears to see through the judicial confusion on this point.  Justice Russell Callander has decided that people arrested for violent offences should not be granted bail.  It has been a long time coming, but we are grateful nonetheless. 

This, as reported in the NZ Herald:

A district court judge is waging a crusade from the bench to stop serious offenders being released back into the community.  At one sitting earlier this month, Judge Russell Callander sent four defendants back into the cells while making strong statements about the need to keep the public safe.

During the hearings at the Auckland District Court, Callander said bail was granted too readily and judges could not take any more chances.  “We are almost weekly now presented with ugly situations in court where violent offenders seek and obtain bail, only to return home to inflict either death or further grievous injury on the original complainant,” Callander said.

“That strikes fear into the heart of any rational community, and indeed into the heart of any rational judge assessing risk issues on bail.”  Callander is usually based in Tauranga but has been filling in at Auckland.

Justice Callander is implying that those justices who release alleged violent offenders back into the community to await trial have departed from reason.  The Criminal Bar Association president Tony Bouchier, however, pointed out that every application for bail should be treated on its merits–which is a reasonable position.  However, his next statement predicated upon his previous statement about merits was less reasonable. 

“We have tens of thousands of people on bail who are abiding to their terms and not offending while on bail.”

One wonders how many of those tens of thousands of people have histories or allegations of violence, such as some of the four whom Justice Callander recently refused to grant bail.

The four defendants who were subject to Callander’s crack-down, who can’t be named because it may influence pending court trials, were up on a range of offences.  One allegedly king-hit his partner, causing her to go blind in one eye.  Another allegedly robbed a jeweller’s shop while high on meth, placing a shotgun to the owner’s face.  The third was a recidivist burglar with 106 previous convictions facing a fresh charge of burglary.  The last was a man kicked out of a rehabilitation programme, resulting in breach of e-bail.

A person who violently assaults another citizen or threatens violent menaces has crossed a line.  Once crossed, that line risks becoming faint.  For many it disappears entirely.  Conscience becomes deadened.  Violence becomes an “ordinary” mode of  living. Such will prey upon others to get the gratification they desire.  Most violent crime in all countries is committed by a hardened, brutal few who repeatedly re-offend. 

Refusing bail for those indicted for crimes of violence must become the null, default position of judges.   

Standards of Proof

Compensating David Bain

Children are frequently entertained by “find the mistake” type puzzles.  We have found a howler of the genre for you to puzzle over.  It occurs in the ruminations of one Sir Bob Jones–an opinion writer in the NZ Herald.  We quote the article below.  See if you can find the childish mistake.  (We should note in Sir Bob’s defence that he has been known to sit in his office of an evening conversing with many a glass of high quality shiraz, so maybe he wrote this piece whilst under the influence.) 

Firstly, Sir Bob informs us, his dear readers, that he is a man of astute and careful judgment when it comes to New Zealand politics and politicians. 

Age and experience have a moderating effect and teach one never to rush to judgment on issues without the full facts.  It’s certainly the case with me, which may surprise readers. But analysis of my columns will show that while I may use colourful or comic comment if a strong view is expressed, it’s invariably supported by the facts.

My life-long interest in politics dates back to the 1949 election and the shock as a small boy of seeing tears in my father’s eyes following the defeat of the Labour government. I recall every subsequent election and have known nearly all of our prime ministers, commented in hundreds of articles and books on our politics and participated in the process.

So, Sir Bob is in firm possession of the “full facts”.  From his peculiarly endowed perspective he unleashes a harsh and extreme criticism as follows:

So with that background and the moderation rider I mentioned, I have no hesitation in saying there has never been a more disgraceful political action in the post-war years than the behaviour of the Justice Minister Judith Collins over the Bain compensation matter. Its breath-taking arrogance is without precedence.

Sir Bob does not intend this to be hyperbolic.  He apparently wants his judgements to be taken seriously.  What on earth could Justice Minister Collins have done to warrant such an indictment of “breathtaking arrogance without precedence”?  It turns out she is only doing her job–watching out for the justice of awarding compensation for David Bain, former convicted as a murderer, now acquitted.  Since a jury determined that David Bain was not guilty of murdering his family, it is absolutely clear cut to Sir Bob.  He needs to be compensated for his time spent in prison.  There is no question of whether compensation should be given; it is only a matter of how much.

She has effectively said she disagrees with a jury’s findings after an exhaustive three-month trial, disagrees with the widely regarded greatest law lord of the past half century and his Privy Council, and disagrees with Canada’s (former) top judicial figure after his three-month investigation.

Of course Sir Bob knows the difference between a criminal trial and a civil trial. Of course he knows that there is a different standard of proof.  Of course he knows that in a criminal trial the very high standard of proof requires “beyond reasonable doubt” whilst for a civil trial the standard is lower, and more easily satisfied–“on the balance of probabilities”.  This means that not infrequently one may get a favourable outcome in a civil action but fail in a criminal matter.  Sir Bob knows all this.  He is just poking borax for the fun of it.  Shiraz can do that to you. 

In fact, Minister Collins appears to be doing her duty to uphold the law extremely capably and with great diligence.  Especially as one of our more acclaimed jurists delivered such a damning indictment upon the Canadian judges recommendation for compensation.  Whilst Tom Cruise may vehemently assert, “I know the law!” it appears that Justice Binnie from Canada did not–at least with respect to the law in this country.  Imagine the damage done to justice in New Zealand were Minister Collins blithely to accept Justice Binnie’s recommendation, as Sir Bob is demanding.  Binnie’s report, upon being released, would have created a storm of outrage from the legal profession.  In effect, Minister Collins and the government would have been saying there is no difference between the standards of proof required between criminal and civil matters. 

If that had been done, if that had been the consequence there would be only one outcome over time–that progressively and insidiously standards of justice to convict in criminal trials would be lowered to match the lower “balance of probability” in civil trials.  And that would have shredded a fundamental principle of justice in this country–that an accused person has to be proven to be guilty of a crime beyond reasonable doubt, not just proven likely to have been guilty.  As it is now, many a juror struggles with just this distinction, requiring careful delineation for their benefit by trial judges. 

For our part we, without resort to shiraz, are bold enough to say that Minister Collins has acted with the rectitude appropriate to her duties as Minister of Justice and may well prove to be one of our finest to hold that office in our country’s history.  The assertion of proof in this case, we hasten to add, is merely on the balance of probabilities.  There is no certainty intended.

Justice and Its Friends

Disgusted at Defence Lawyers

The jury system is an intrinsic component of the English justice system we have inherited.  Not all Western countries use it, employing instead the bench trial system where a judge or judges make all the court’s decisions.  It is an important component of the justice system–part of a rich and blessed heritage derived from the first Christendom.

The decline of the jury system is probably inevitable as our society becomes more pagan, less Christian.  Juries are not experts in law.  They are lay people.  From time to time they may make errors of judgment.  Calls for “professionals”–judges and lawers–to supersede juries arise.   One reason is that, for Unbelievers, justice and judgement in this life is the only justice possible. The idea of the guilty going free and unpunished in this life is hard for Unbelief to bear.  People believe that experts should be relied upon to reach safer decisions in a criminal trial.  But a fundamental flaw in the bench trial system is that the State ultimately controls the judiciary; far too many states are corrupted by power and money and the implication is that this can easily reach into the judiciary.
Unbelieving society finds it hard to accept that evildoers may escape punishment due to insufficient evidence or failure to satisfy an adequate burden of proof.  The bar to convict is at risk of being gradually lowered.  Christian societies, whilst being likely more extensive when it comes to listing human evils as crimes, is far more willing to let the (probably) guilty go free, knowing that our justice is not final justice–that is yet to come and it will be full, perfect, and irrevocably certain.

On the other hand, juries are not some abstract verity that provides certainty  of high-quality decisions.  Juries are only as good as the people that make them up.  If the population at large is not aware of the high standard of proof required in “beyond reasonable doubt”, juries can convict on lesser proof.

If the jurors struggle to reason clearly, jurors are more and more likely to decide by “gut feeling”, “intuition”, “impression”, or “how the accused looks in the dock”.  Lurking behind these subjective fripperies is the desire to punish, not to let the accused off the hook.  Utilitarian theories of justice creep into the mindset: it’s better to convict than to let the accused off because it sends a message to society as a whole which is ultimately a good thing–or so the utilitarians would argue.

When the jury of a notorious public trial lets a dubious character go free on the grounds of insufficient evidence or failure to prove beyond reasonable doubt, Unbelief begins to murmur and grumble.  Something is wrong.  The system has to change.  It’s too cumbersome and expensive.  The populace grows uneasy with jury trials and with proving the matter beyond reasonable doubt.   Fortunately, many juries continue to get it right.  Consider this statement from a juror in the David Bain retrial:

“I think there’s been a lot of confusion about what David Bain’s not guilty verdict in the second trial means,” she told TVNZ Sunday reporter Janet McIntyre.  “There’s been a lot of speculation that it means that he was found innocent. And I was a juror and I never found David Bain innocent,” she said.  She pointed out that the jury was never asked to find Bain innocent, but whether or not the prosecution proved the case beyond reasonable doubt. “And that they did not do,” she said.

Precisely.  
  
We suspect there is another dynamic also at work.  Our popular culture is increasingly statist in world-view.  The state is seen as the omnicompetent institution that feeds us, clothes us, takes care of us, and fixes all wrongs.  Such people tend not to think long and hard about the potential of state tyranny and abuse of power.  Such people tend not to consider “beyond reasonable doubt” as a necessary standard of guilt to protect against the abuse and misuse of state power. Statists don’t tend to think of the abuse of state power as a possibility.  After all, how can you bite the hand that feeds? 

A related measure of how justice is assuming less consideration in the popular mind is the opprobrium heaped upon defence lawyers.  A NZ Herald  article on the fallout from the death of defence lawyer, Greg King is illustrative.

But some of those who only saw him [Greg King] on the television or in the newspaper, sticking up for the worst criminals, may have wondered why he was held in such high esteem.  He was a criminal defence lawyer, a profession that normally languishes near the bottom of “most trusted” polls. Even lower than journalists.

“I’m sorry but if he was such a gifted lawyer why didn’t he work for the prosecution?” was one on-line comment to a Herald editorial on King’s death.   “How can I admire someone who works to allow criminals go free?”

Note the perspective reflected here.  Defence lawyers “allow criminals” to go free.  Not “defence lawyers help to force the Crown to prove beyond reasonable doubt”.  Between these two views lies a world of difference. 

Preening Self-Importance

Judicial Pettifogging

We recently had a judge in this fair country who suspended a court case about very serious criminal offending by a criminal gang.  The pretext: judicial offence.  The judge believed the police had not treated the courts and judges with suitable gravity and respect.  Therefore, like a petulant child, he stayed the prosecution.  How puerile.

Here is columnist John Roughan’s take on the matter:

Justice mounts a high horse 
By John Roughan 5:30 AM
Saturday Oct 27, 2012
NZ Herald

Was it really necessary to let indignation ruin a police case?

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Undercover police work is a dangerous task for the personnel involved. Photo / NZPA 

Undercover police work is probably the most dangerous public service anyone can be asked to do in this country. As an ordinary citizen, I don’t find it offensive that police would fake a prosecution to protect someone’s cover.

I find it harder to credit that a High Court judge would let 21 people off criminal charges to demonstrate judicial indignation. If you didn’t  read the news closely, or heard it only on TV, you might have the impression the phony prosecution was the one that was thrown out this week. It wasn’t. The charade was done in a district court sometime earlier and Justice Simon France concedes it did not prejudice the case in front of him.

Nevertheless, he decided a stay of prosecution was necessary to protect the courts from deception and declare that the police must not abuse its procedures to assist a criminal investigation. Really?

The integrity of the courts is obviously important, possibly as important as an undercover agent’s life. Information sworn before an officer of the courts is our best assurance of truth in all the transactions of life. It is vital that nobody dares trifle with it.

The ruse that raised the ire of Justice France does sound a bit silly.  Nelson police infiltrated a group called the Red Devils Motorcycle Club that they believed could become a chapter of Hell’s Angels. When they thought one of their covert operators was coming under suspicion they planted some drug equipment and stolen goods in a lock-up they had hired for him.  They forged a search warrant that purported to be signed by a court official, then summoned the owner of the lock-up who had to come quite a distance to open it for them.

The undercover constable was duly arrested and charged. The plan was to have him plead guilty and get convicted quickly. But a complication arose when the Red Devils decided to get him a serious lawyer.
Proceedings became drawn out. For the sake of realism, and since he was out of town anyway, his handlers had him miss call-ups in the Nelson District Court. Twice a bench warrant was issued and a bail breach charge was laid.

Justice France tells this story without a trace of the amusement it arouses in me. “Soon after,” he says, “the operation was terminated and police sought to have the charges withdrawn.” It is probably not unusual for undercover police to be caught up in the criminal activity they are investigating and to be prosecuted for the sake of their credibility. But this is the first case Justice France can find that was deliberately set up for that purpose.

For unintended prosecutions the police have to get permission from the Chief District Court Judge to use the undercover agent’s false name, and that was done in this case too.  But Justice France thinks the Chief Judge, the late Russell Johnson, was not aware that this one was a complete set-up and that this would have made a difference to Judge Johnson, who I knew when he was a very popular prosecutor in Auckland.
Maybe the police deceived him. They were a little deceptive in their testimony to Justice France, not letting on initially that they had written their guidelines for a planned prosecution after the event.

Yet he prefers to conclude they did not intend to deceive anybody and believed they were acting legally. They were merely “reckless” and “unwise” not to have sought wider advice.

Why, then, did he find it necessary to undo all their work and grant the 21 arrested a stay of prosecution?
“A fraud is being committed on the courts,” he said. “The judges who are dealing with it are being treated in a disrespectful way. Their time is being taken up with a fiction.”

Forgive me some disrespect; time is not exactly a priority in the judicial process, as anyone who has answered a call to jury service well knows.  More seriously, Justice France declared, “It is no function of the court to facilitate a police investigation by lending its processes to the false creation of street credibility. The courts are not part of police investigation. There is and can be no suggestion of collaboration.”

Fine words, if they were true. What about when undercover officers are allowed to be charged under a false name?  “Perhaps the two situations are quite similar,” he concedes, “But from my viewpoint all that does is call into question the correctness of the false name practice.” Oh dear.

Undercover police work happens a long way from a High Court bench. It is not only dangerous, it is difficult. It has to deceive innocent people as well as the guilty if the agent is to be effective and safe.

When judges can help, I think they should.

Quite.

When Justice Fails

Cynicism and Disquiet

The law courts, where justice is dispensed, are holy places.  On display there are the culture’s deepest beliefs about truth, righteousness, sin, evil, guilt, and judgment.  The law courts are our institutional, established religion writ large.

It is understandable, then, that popular culture, the media, the Commentariat and the chattering classes are fascinated with courts and trials.  Particularly when murder is on the docket.  The national fixation with the recent Scott Guy murder trial is a case in point.  The accused was found not guilty by a jury of his peers.  Most leave profoundly disquieted.  Why?

Getting Off Scot-Free

Sick at Heart

Justice in this world of Unbelief is a pretty thing to behold.  The courts are beautiful in elevation; the joy of the nation.  They are both divertingly entertaining and instructive.

Recently in New Zealand we have been given an object lesson in avoiding the courts–for the most violent and evil acts.  You see, the context in which our Unbelieving system of justice works is like this:  evil is believed to be extrinsic to the human heart.  Evil acts, therefore, are the product of conditioning–whether biological, chemical, or social.  Evil is not truly evil, just different.  Morality amounts to nothing more than a general social convention.  Justice represents tricks the majority plays on other people and their actions it doesn’t like.  There is no such thing as genuine evil or wickedness. 

A subtle implication of this is that the more extreme and barbaric one’s crimes, the more likely it is that you will be treated as sick and needing help.
  Only someone who is truly sick would do such things, right?  So, if you are going to do crime it is best to do really sadistic, violent and perverted stuff.  Then the system will be biased towards regarding you with pity and condescension rather than retributive wrath.  It will rush to see you as the piteous victim of biological, genetic, chemical or social demons.

But now we have just been served up with a magnificent development on the theme.  If you do really violent, perverted stuff and then can get a psych to diagnose you with dementia, even mild dementia, you will not even go to trial–and you will enjoy name suppression to boot.  Off scot-free.  Now the most common symptom of dementia is memory loss.  So, if you plan and scheme to do terrible crimes, acting like a depraved animalistic brute,  and commit acts of barbaric savagery upon others, the Unbelieving justice system will be set up to paternalistically condescend to you.  But if you apparently have little or no memory of these acts, it will diagnose you as demented, and you will not even face trial.  Stupendous. 

Here is the “case”–as reported in Stuff.  (Disclaimer: we have yet to hear the other side, if there is one, so regard this as prima facie evidence of a cunning plan to get off scot-free. But since the court is reported as accepting the guilt of the non-accused on the balance of probabilities, it’s hard to see how the “other side” could change one’s view.)

A serial rapist who kept one of his teenage victims as a sex slave in a remote bush hut is expected to walk free from court because he has developed mild dementia. Court delays, including more than two years elapsing since he was first charged with abduction and rape, have also contributed to what one of his victims says is the justice system failing them.

A judge has accepted the man committed what amounted to hundreds of rapes involving four women – some aged as young as 15. But he is expected to walk free on the charges when he appears in court next month. He is also seeking permanent name suppression.  The  dragged-out court process has appalled one of his victims, who was 19 when she was lured to a remote part of the North Island and kept as a sex slave for five months. . . . “I was repeatedly terrorised with threats of torture, forced abortion with wire, starvation, being eaten alive by pigs, death and death to any babies born to me,” she told The Dominion Post.

She became pregnant to the man and says he shot a healthy pregnant cow, slit it open and threw its unborn calf to be devoured by semi-wild pigs, to demonstrate what he could do to her. In her statement to police she described the pregnancy ending violently as she was being raped. “I was cramping, in a lot of discomfort and groaning in pain. Clearly I was having a miscarriage. He knew I was pregnant. He knew I was bleeding. Clearly I was in pain, yet he continued to rape me.” Being repeatedly raped was one thing, but to violently experience the emotional pain of miscarriage during rape was “shattering beyond belief,” she said.

“My ability to protect the life within me was smashed to pieces. It affected me on how I viewed myself as a human being and a mother and added a different dimension to the power he held over me as a rapist.” Suppression orders mean The Dominion Post cannot reveal specific details of the woman’s ordeal, including dates and where the offending took place.

The woman was the first to complain to police, in September 2008. Three more victims subsequently came forward. She wants her own name suppression lifted – and she and the other victims want the man’s name suppression lifted so the public knows what he did. He was originally charged in December 2009 with four charges of rape, one of unlawful sexual connection and one of abduction. The charges increased in 2010 to 14, including a representative charge covering hundreds of rapes, and further charges were later laid as more complainants were spoken to. So far he has made 27 court appearances and up till the last two was deemed fit to stand trial.

However his lawyers obtained reports from a psychiatrist and a psychologist saying he has developed mild dementia and is now not fit to be tried. A judge has accepted the medical opinions after the Crown also obtained reports from a psychiatrist and psychologist. (Emphasis, ours)

 . . . . Despite her protests, she became a sex slave as the man moved her into his bedroom, raped her almost daily at will – and told her he would kill anyone who tried to help her. She said she was powerless, helpless and completely manipulated and feared that because of the remoteness he would easily track her down if she tried to escape.

Because he will not be criminally tried on rape charges, the judge has viewed the evidence and ruled that on the civil law test of the balance of probabilities the man was a rapist. She was also raped by him in another house where she heard details of a murder being planned and money being exchanged for the hit. He said no-one would know where she was because he would force her to write to her parents saying she had hitch-hiked to Auckland. The man forced her to do heavy labouring work and beat her when she plucked up the courage to ask him to allow her to leave. She eventually escaped using the man’s vehicle when he went bush with a visiting friend.

There you have it.  This perp was clearly sick, right?  He is even more sick now.  Unbelieving justice at work.  One of the Seven Wonders of the Universe.  We have little doubt that if he had been committed to trial, his mild dementia would have become acute within a matter of days. 

Beyond Reasonable Credence

Body Mapping and Blood Splatter

Life imitating entertainment.  That’s what is happening in court rooms everywhere these days.  Turn on the TeeVee on virtually any night and you will have three or four forensic crime shows to watch.  Within short order you will become a relative expert on data matching, blood splatter patterns, bullet rifling, and finger-printing.  It’s all comforting because the innocent are always vindicated, the guilty are always caught, and it is hard-evidence, fact-based.  Science, after all, gives certainty.  Many would say, the only certainty in this mad world.

Ah, sorry.  It all a figment of the febrile imagination of TeeVee moguls and their minions.  But it is having a  significant impact on law courts and juries.  It’s got the Aussies worried.

Gary Edmond, a University of NSW law academic who has researched expert evidence over the past four years, wrote in a paper in the Australian Journal of Forensic Sciences earlier this year: ”A good deal of the opinion evidence produced by forensic science and medicine appears to be unreliable or of unknown reliability, and obtained in conditions that make few, if any, sustained attempts to minimise known risks and dangers.”

In 2009, the peak body of US scientists, the National Academy of Sciences, released a report that found only DNA testing among the broad range of forensic sciences was sufficiently grounded in science to regularly and accurately identify a suspect. (And even then serious concerns remain about DNA evidence, including the ability to wrongly convict people on tainted or rigged samples).

The flip side is that almost every other field of forensic science – the science used by expert witnesses in court to establish guilt or innocence – does not have the same level of scientific rigour.  The pall cast by the report hangs over areas that have developed a TV-inspired mythos of infallibility: blood spatter examinations, bullet rifling and even fingerprinting.

”What we see on TV is a super science,” says Richard Kemp, a University of NSW psychologist who is studying the way juries react to expert evidence.  ”And that is so at odds with the reality of what is occurring. You want scientists doing science, which on the whole is really dull. It doesn’t make for good TV.”

Convictions are starting to fail in Courts of Appeal where the conviction has been based on speculative forensic “science”.  The SMH article reviews one such appeal:

When a sledgehammer-wielding robber broke through the front doors of the Willoughby Hotel early one January morning in 2008, his balaclava-clad image was captured by a security camera.  Fewer than 30 minutes later the same robber, still bearing a sledgehammer and still wearing a balaclava, was photographed stealing just over $13,500 at the P.J. Gallagher’s Irish Pub in Drummoyne.

Twenty-three months later, a Tempe man, Raymond George Morgan, was found guilty in the District Court of two counts of robbing more than $58,500 in the heists and sent to jail.  The security cameras helped convict Morgan of the crimes when an expert witness linked him to the scene of the crimes through a science used in court known as ”body mapping”.

Earlier this month Morgan won a retrial because the expert’s evidence was rejected by the Court of Criminal Appeal. The court found the body mapping was ”simplistic” and did not use one measurement. In the appeal court’s view, the ”science” of body mapping used in the case of Morgan was wearing no clothes.  So much for all those toned and svelte CSI forensic investigators running around on television each week.

Morgan’s robbery convictions have been overturned at a time when increasing concerns are raised about ”junk science” appearing before the courts: unreliable expert evidence leading to contaminated criminal trials.  At its worst, such evidence could result in innocent people being sent to jail. At the very least, such evidence could tilt trials unfairly.

We live at a time when Man is demanding epistemological certainty.  Infallibility is an inescapable concept and creatures cannot function without it.  Either they will submit to the infallibility of God Himself, or they will endeavour to manufacture it amidst the endeavours of the creature or the creation.  

The over-egged claims of the TeeVee forensic shows are just one more example.  Yet they are deceptively potent–because sooner or later viewers end up on a jury where they will be required to decide guilt or innocence on the basis of forensic science.  If they are predisposed to believe that the science is always infallible, always right injustice and false convictions could become endemic. 

Sadder, But Wiser–Part V

Expect More of the Same

We come to the final post in this short series on Ian Wishart’s important book, Breaking Silence: The Kahui Case.  The question begged in large letters is, Who killed the twins?  The question is now largely academic, since the one charged, Chris Kahui, father of the twins has been acquitted.  He cannot be retried.  There is no-one else on the radar screen. 

The third post in this series made the definitive statement that Macsyna King was not responsible.  She was not there the fateful night the twins received the brain injuries which eventually killed them.  No amount of irrelevant ad hominem that points to her previous life, habits or disposition can obliterate this Inconvenient Fact.
 

There is plenty of circumstantial evidence that the twins were vulnerable and at risk medically and physically, due to still being four weeks premature, with at least one of them (Cru) suffering a “stop-breathing” attack in hospital before release to the parents.  However, this does not reasonably explain why both twins received injuries to their brains the same night, at the same time–injuries which eventually killed them.  It is beyond reasonable doubt to suggest that co-incidentally both twins died of the same natural causes.

So, we are left with the “team” which was looking after the twins on the night of Sunday 11/Monday 12 of June 2006–one or more members of which was responsible for the brain damage.  The team consisted of Chris Kahui, his father Banjo Kahui, sister Mona Kahui and Stuart King (brother of Macsyna, then partner of Mona Kahui).  During the course of this night the twins had a non-breathing incident (apnoea) which everyone in the house testified to; subsequently, they settled down and went back to sleep, apparently breathing normally.  Chris was alone with the twins for periods of time that night, supposedly feeding them.

The standard of proof for a guilty verdict–beyond reasonable doubt–is a high bar.  On the lesser standard of the balance of probabilities it would be an open and shut case.  The question is whether the circumstantial evidence makes probability so high that it moves to “beyond reasonable doubt”.  Clearly the jury did not think so: they bought the defence “line” that Macsyna King was a devil woman and that a simple, confused, gullible man ten years her junior could have been so violent and malicious to do such an evil thing.  (Incidentally, on a more general note, when you have greater and greater proportions of the general population unable to read or write and never learning the fundamental rules of thinking or rational thought, you are going to see more and more jury’s decide cases on emotive, “gut feel” grounds.  This gives plenty of scope to defence teams to engage in irrelevant misdirection and succeed.  It may well be appropriate in the future to require cognitive tests for reasoning capability in order to sit on juries.)

So, Chris Kahui was acquitted–in record time.  But his apparent guilt has become even more apparent, subsequent to the trial and during the recent inquest.  He was extremely reluctant–opposed–to calling an ambulance for the twins when they stopped breathing; he had to be forced to attend the hospital when the dying twins were admitted; he has changed his story about what happened that fateful night four times–the last at the inquest, where a completely different version came out (making him appear even less culpable).  This last evidential episode, so much in conflict with earlier and fresher testimony and statements to the police, had all the hallmarks of evasion.  People who are not guilty do not evade.  They have no reason to do so.  After all, it is not as if he could be retried.

One contextual point needs to be remembered–it would not have taken much rough handling to kill the twins; they were in a very vulnerable physical state.  Kahui was drinking that night.  It would have taken only a momentary flash of anger and impatience–and which parent, attending crying, unsettled infants in the small hours of the night has not experienced that?  Moreover violence–extreme physical violence towards family members–had been Kahui’s role model all his life, demonstrated habitually by his father, Banjo.  Repeatedly he had seen his father get angry; he had suffered the brutal physical consequences.

One final point.  You cannot read Breaking Silence without being convicted yet again that when the God-ordained and commanded institution of marriage demanding lifelong fidelity, sanctioned by oaths, is not adhered to, everything in society begins to fall apart.  Interventions by the State and state agencies which ignore this at best are ineffectual; most often they merely serve to make matters worse, compounding, subsidising, and encouraging further dissolution. 

The most constructive and helpful thing the State could do is return to a protection and enforcement of marriage as a life-long monogamous contract–and consistently reflect that in all family, commercial, and civil law.  We realise, however, that this will not transpire until the overwhelming majority of people in New Zealand demand it and insist upon it. Until that time the idolatry of secular humanism of the majority will defend every perversion of human behaviour in the name of the great god, Human Rights. This will not change in societal terms until hundreds of thousands of people stop worshipping Man in this country become reverent disciples of the Lord Jesus Christ.  

As a nation, we will either repent or we will continue to suffer the worsening consequences.  Twins Chris and Cru Kahui, mother Macsyna King, father Chris Kahui, Banjo Kahui, and the extended families of Kings and Kahui’s are our future, unless we are prepared to humble ourselves before the God Who made the heavens and the earth, and before His Son, Jesus Christ, the One appointed as Lord of the heavens and the earth. 

We must hasten to kiss His feet, lest He become more angry with us than He already is (Psalm 2: 12).

>Dry Law?

> Flying Sparks

One of the more attractive aspects of government in the US is the constitutional separation of powers.  Of these powers, the Supreme Court is (at present anyway) the more interesting.  Whilst nominations to the Court have become far more politicised in recent decades than they once were, the decisions and reasoning of the justices avoid the almost universal ad hominem irrelevance found in other branches of government, focusing upon the “real” issues of the Republic.

The New York Times has published a piece reviewing some research done on the current Bench members’ legal writing styles.

The justices turn out to be a surprisingly literary bunch. Justice Kennedy, the court’s swing justice, had barely started talking when he began quoting from Hamlet, and he went on to discuss Dickens, Trollope, Faulkner and Solzhenitsyn.
Justice Ginsburg said she had learned much from a course Nabokov taught at Cornell on European literature.
“He was a man in love with the sound of words,” she said of her former professor. “He changed the way I read, the way I write.”

One test is whether the written opinions of  the justices were accessible to the legendary common man.  Here’s Justice Thomas: