Islam’s Cultural Fruit

Saudi Arabian Enlightenment

At the root of all cultures is a religion–a shared belief in ultimate realities (of one kind or another).  All human beings are religious.  All have beliefs in the ultimate.  Even those who insist that everything is relative and there are no ultimates or universals governing all of life are espousing their particular ultimate belief.

When a religion becomes widely shared, it produces a dominant culture which in its turn governs the law, the state, the family, education, relationships between the sexes, between parents and children and so forth.

In Arabia, Islam has been the dominant religion for 1500 years.  It has produced a certain culture.  The prevailing wisdom amongst the Commentariat in the West is that Arabia is economically primitive and therefore is peopled by the ignorant, the barbarian, and savages.  The subtle sub-text is that Arabians are Islamic because of their ignorance.  That is, if they had the “privileges” of a Western education and the benefits of a Western standard of living they would evolve to hold Islam in a nominal sense only.  This is the same perspective the West holds upon the Christian religion–it is part of our tradition, but a fairy story, a myth.  No more, no less.  Wise men gave up on long ago. 

The notion that ignorance begets adherence to Islam in Arabia paternalistically reverses history’s cause and effect.  If Islam had been a recent innovation in Arabia, the case may be arguable.  But not when the religion of Islam has controlled Arabia for one and a half millennia.
  Now the only possible way of interpreting Saudi Arabia today is that it is because of Islam that Arabia remains ignorant, barbaric and savage.  Islam, the dominant religion, has shaped and created the dominant culture.  Saudi Arabia is Islam.  The culture of Saudi Arabia is Islamic.  The laws, the institutions of governance, marital and familial relationships are Islamic.  Saudi Arabia is Islam externalised in the culture and and internalised in the human heart.

By their fruits ye shall know them, the Bible teaches.  So what are the fruits of Islam?  This from the NZ Herald:

Seven convicted of armed robbery in Saudi Arabia face execution today.

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Speaking over a smuggled cellphone from his prison cell, one of seven Saudis set to be put to death today by crucifixion and firing squad for armed robbery appealed for help to stop the executions.

Nasser al-Qahtani told the Associated Press from Abha general prison yesterday that he was arrested as part of 23-member ring that stole from jewellery stores in 2004 and 2005. He said they were tortured to confess and had no access to lawyers.

“I killed no one. I didn’t have weapons while robbing the store, but the police tortured me, beat me up and threatened to assault my mother to extract confessions that I had a weapon with me while I was only 15,” he said. “We don’t deserve death.”

A leading human rights group added its appeal to Saudi authorities to stop the executions.
Al-Qahtani, now 24, said he and most of the ring were juveniles at the time of the thefts. They were arrested in 2006. The seven received death sentences in 2009, the Saudi newspaper Okaz reported then.  Last Saturday, he said, Saudi King Abdullah ratified the death sentences and sent them to the prison. Authorities set today for the executions. They also determined the methods.

The main defendant, Sarhan al-Mashayeh, is to be crucified for three days. The others are to face firing squads.  

It is not just the barbaric extremity of the punishment that established Islam requires, it is the lack of due process, the complete inability to presume the innocence of the accused until proven guilty, and a requirement that guilty be proven beyond reasonable doubt.  Saudi Arabia employs torture to get “confessions”.

Al-Qahtani faced a judge three times during eight years in detention. He said that the judge did not assign a lawyer to defend them and did not listen to complaints of torture.  “We showed him the marks of torture and beating, but he didn’t listen,” he said. “I am talking to you now and my relatives are telling me that the soil is prepared for our executions tomorrow,” he said, referring to the place where he will be standing to be shot.  Saudi Arabia follows a strict interpretation of Islamic Shariah law under which people convicted of murder, rape or armed robbery can be executed, usually by sword.

Crucifixion is one of the most terrible ways to die.  It is cruel, barbaric, and inhuman.  We believe Amnesty International has it right. 

Several people were reported crucified in Saudi Arabia last year. Human rights groups have condemned crucifixions in the past, including cases in which people are beheaded and then crucified. In 2009, Amnesty International condemned such an execution as “the ultimate form of cruel, inhuman and degrading punishment”.

Why does Islam produce such barbaric cultures and nations?  There are several reasons.  The first is that Islam is completely locked into an authoritarian culture.  Allah has spoken and speaks.  The only correct and pious response is obedience, total obedience.  But, since Allah speaks through prophets and teachers, some human authority (the one who asserts Allah that has appointed him to rule) implicitly carries the same absolute authority as Allah himself.

This explains why representative democracy never fits comfortably with an Islamised culture.  Disputation, differing views, argumentation, factions–these are implicitly non-Islamic.  So, when a particular faction achieves control–in this case the House of Saud–it will be held with an authoritarian, iron grip.  It is the way of Allah.  It is a true representation of this idolatry, of this demi-god.  The same pattern is repeated throughout the Middle East: Syria, Iran, Iraq, Jordan.  The ultimate and frequent way of dealing with differences is to kill, to dominate, to enslave, to gain submission by force.  Then once power is gained, it is enforced ruthlessly. 

When it comes to justice in the courts, the rights of the accused are as nothing.  Authoritarian control reflects who Allah actually is believed to be, not justice.  Proven beyond reasonable doubt is unimportant as long as vengeance is manifest.  When it comes to marriage, women are under fierce control; they are regarded as lesser human beings.  The authoritarian chain of command is  manifest in Islamic families and marriage–as indeed in every area of life.

The West cannot bring itself to acknowledge this.  On the one hand, it wants to manifest an effete tolerance towards all.  So Islam must be spoken of respectfully.  On the other hand, it holds to a view that Arabia is peopled by primitives, who, once more civilized and westernised, will relinquish their fanatical adherence to Islam.  Yet again, the West believes that underneath the skin of every Arab, both man and woman, lies a Western democrat, with a longing for freedom, justice, ice-cream, and MacDonalds and feminism.  Liberate them, give them the vote and voila, Western democratic values will emerge.  Unfathomable.

Note how the article printed in the NZ Herald goes on to provide a socio-economic, pseudo-Marxian explanation for the present atrocity in Saudi Arabia.  Note the advancing of relative poverty as a reason for oppression, not the heart of the matter which is Islam itself.  This is a classic example of how the West processes such horrors when it comes to Islamic nations.  They are fit into Western narratives about class conflict, disparities of wealth, and the need of socio-economic equalities. 

Abha is located deep in the southwestern province of Asir. Southerners face systematic discrimination, and people there are perceived as second-class citizens compared with those in the most powerful central region, where the capital and Saudi Arabia’s holy shrines of Mecca and Medina are located. Political analyst Mohammed al-Qahtani said the central region got the best services and treatment.

“The verdict is very harsh, given all the circumstances of detention and trial with no access to lawyers, but part of the problem is selectivity,” he said. “If one person belonged to political heavyweight regions, the verdict wouldn’t have been harsh.” He added: “The south is marginalised.”

Christ alone can save Saudi Arabia from itself.  Until the people humble themselves before the Lord of glory and repent of Islam and all its cultural manifestations they will remain trapped in its barbarism and injustice and oppression of the weak and the voiceless.  When they turn to Christ they will find that His burden is easy and His yoke is light and that He is gentle and humble of soul. 

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.

A Tale of Two Trials

To Compensate or Not to Compensate, That’s the Question

Emeritus Professor C K Stead has written an excellent piece reviewing the judicial reviews of the Bain murder case.  Stead stands firmly behind the argument that on the balance of probabilities, David Bain was guilty and, therefore, no compensation is required.

His reasoning and argumentation is well worth the read–even for those who by now have become tired of the whole affair.  (Our concern in the compensation debate has been tangential, but not unimportant.  We believe that the distinction between the higher standard of proof–beyond reasonable doubt–required in criminal trails, versus the standard of “balance of probabilities” that usually applies in a civil case is a very, very critical distinction to maintain.  If that distinction were to be lost the power and facility of the state to imprison on less than adequate grounds would be greatly enhanced–which would be a dangerous deformation.  We therefore believe that the debate is of public importance.  C K Stead’s piece is a worthy contribution to an important matter.)

[For readers fresh to the case, here is a brief overview:  David Bain was convicted of murdering his family and served nearly the full term of his jail sentence.  Prior to the completion of the sentence the Privy Council in London ruled that in the trial there had been a substantial miscarriage of justice requiring the release of Bain and a retrial.  The subsequent second trial reached a verdict of “not guilty”.  Bain was therefore free, but has now been seeking compensation for wrongful imprisonment.  The Minister of Justice received a report from a retired Canadian judge recommending compensation.  A review of that report by another justice found it inadequate and error-prone.  It is this latest controversy that C K Stead’s piece reviews.]

Associate Professor Ken Palmer’s letter to the Herald was so emphatic in his support of Canadian judge the Hon Ian Binnie’s report on the Bain claim for compensation, and so (it seemed to me) immoderate in its rejection of QC Dr Robert Fisher’s response, I felt to have an opinion on this currently “talking” topic one must read both, which I have now done. This has not altered my view (a layman’s, not a lawyer’s) of David Bain’s likely guilt, but it has added a new perspective. It is only reading Justice Binnie’s report that I recognised how clumsy and less-than-competent the police inquiry and consequently the first Crown case were and how much of the subsequent drama sprang from those initial errors.

Reading through the detailed forensic analysis, and the challenges to it, which have accumulated over the years of Joe Karam’s crusade on David Bain’s behalf, it is easy to imagine how the second jury might have grown weary of detail and focused instead on the drama and the rhetoric – in particular the defence lawyer’s boldness in “standing up to” the trial judge, his “courage” and his outrage. It would be tempting, in that second jury’s shoes, to think, “This is such a mess. The first Crown case has been full of holes and has had to be re-patched. The Law Lords have said the first conviction was a mistrial. Why should we struggle any further? Let’s say at least that the case hasn’t been proved, and acquit.  If he’s guilty, well, he has served his time anyway.”

I have an impression that in some degree, Justice Binnie may have entered the fray in the same spirit, seeing himself as someone called in to “right a wrong”, though he is certainly not, I should add, one who is impatient with the facts or unwilling to wrestle with them, one at a time.

But that “one at a time” is part of the problem. As Dr Fisher points out, a circumstantial case depends on the strength of a single rope made up of many strands, any one of which may be insufficient. Justice Binnie’s method is to begin with the Luminol footprints, the weakest strand (at least in the sense of being the most technical and therefore technically arguable), declare it favours David Bain, and then bring each of the other strands in the case up against those footprints and find it wanting. And it is to the footprints he returns first in his “Summary and conclusions as to factual innocence” (p.138).

Yet even Justice Binnie admits “‘luminescence’ in the dark does not exactly give rise to laser-like accuracy”, and agrees “there must be some room for error in the Luminol measurement” (p.79/257). It seems strange, therefore, that he has “no hesitation in recommending that the Minister accept the results of the tests of Mr Walsh” [for the Defence] (p.77/251), and proceeds from that point in a manner which suggests the case for innocence has been made and needs only be demonstrated by reiterating the defence argument against each of the other strands.

His consequent bias is apparent in statements like the following: “It is only the fingerprint blood that can tie David Bain rather than Robin Bain to the killings.” Only? And there is nothing at all that can tie Robin to the murder weapon except that he was killed with it!

Another example of this bias: “Nothing has been established beyond a reasonable doubt. Nevertheless, the cumulative effect of the items of physical evidence, considered item by item both individually and collectively, and considered in the light of my interview with David Bain” [my italics] … “persuade me that David Bain is factually innocent” (p.139/ 463). But why should items of fact, none of which, Justice Binnie concedes, is “free of difficulty”, be considered “in the light of” the accused’s own testimony, which is more likely than any other to be false?

A further example: “If David Bain’s recollection … is accepted, and I do accept it, then the force of the prosecution’s argument … is much diminished” (p.38/124). But of course if we only have to go to David Bain for the truth, then the prosecution’s argument is not just diminished – it’s dead! What kind of source is the accused for the truth of the matter in a case of murder?

And that brings me to what appears to be the real weakness in Justice Binnie’s argument: his naive (as it seems to me) acceptance of David Bain’s truthfulness in interview, and Binnie’s reliance on “innocent openness” as the explanation where the accused’s testimony seems to aid the prosecution rather than himself. As a “final word” to the executive summary of his report, Justice Binnie quotes Bain’s ringing statement of complaint that he has not only had to mourn for his family and spend 13 years in jail, but has had to live with the labels of “monster” and “psychopath” – all true of course, but only relevant if he is innocent, and that is still the question.

If David Bain was not the killer, his case is a sad one; but if he is, then he has had many years to go over his innocence story – so many that he must very nearly believe it himself, at least sufficiently to make it sound indistinguishable from a truthful statement.

As Dr Fisher says, any number of studies have shown that “none of us has the ability to decide whether or not a witness is to be believed based on watching and listening to that witness in person” (p.9/18).

Predisposed as he is, Justice Binnie is able to wave away David’s brother’s blood on his clothes; the broken glasses at the murder scene which were of use to David but not to Robin; David’s fingerprints on the murder weapon and his handprint on the washing machine; David’s admission that he heard his sister gurgling and that he alone knew where the trigger key to the rifle was hidden; the blood on David’s gloves – and many other finer strands in that rope of circumstantial evidence. Instead of David Bain as the killer, Justice Binnie offers us (since there is no third alternative) a murder by the father, Robin, who must have worn gloves (why?) while killing his wife and children, then changed his clothes and put the blood-stained ones in the washing basket (again, why?) before killing himself, still with a silencer on the rifle (why?) and having first turned on the computer to write his confession rather than writing it by hand. Justice Binnie dispenses, it seems to me almost casually, with each of these elements, as with David’s strange behaviour after the murders.

Signs of extreme stress would be expected; but what state of mind was David in that he made detailed plans for the victims’ funeral; specified what lingerie his deceased sister Arawa would be dressed in; wanted the pop song Who wants to live forever? to be played for Laniet; told his aunt she was not to wear black at the funeral “because we see death as a celebration”; wanted to hold a posthumous party for Arawa on the Sunday after the murders; and spoke of “black hands” taking his family away? To me all this suggests a state of disconnection from the reality – a state of mind in which the crime itself might have been committed – as if the one who had taken responsibility for that (by every report) disastrously dysfunctional family was now ready to tidy it all away with a tasteful funeral.

In every case where the original police enquiry failed to preserve, or to look for, evidence – Robin’s hands which should have been checked for gunshot residue, and fingernails for any signs of a fight with Steven, the bloodstained carpet, the whole house which was allowed to be burned down – the David Bain team has used this failure as if here was a piece of evidence that would have cleared his name; and Justice Binnie has tended to follow them in this. But in each case it could be (and in my view equally or more likely was) the destruction of an incontrovertibly damning piece of evidence for the prosecution. There are certainly no grounds for saying, or implying, that these pieces of “lost evidence” lead one to the conclusion that David Bain is “factually innocent”.

One final word against the payment of compensation: to say, as Justice Binnie does, that the “factual innocence” of David has been established clearly implies the “factual guilt” of the father, Robin. Yet no case has ever been made against him, except by implication. And if the case were made, it would be so much weaker than the one against his son that it would not stand inspection for more than a few minutes. I don’t think a decision by the New Zealand Government should be allowed to label Robin Bain the murderer of his family.

That the second jury found David Bain’s guilt had not been proved “beyond reasonable doubt” does not mean they would have affirmed that his “factual innocence” had been demonstrated; but that is what the case for compensation requires, and what Justice Binnie affirms. It does not surprise me that when she received his report, Judith Collins felt another opinion was needed, either for confirmation or rebuttal. It does not surprise me, either, that Dr Fisher did not confirm, but found serious fault in, Justice Binnie’s report.

C K Stead is a writer and emeritus professor at the University of Auckland. His latest novel, Risk, was published by MacLehose Press in October.

Secular Achievements

A Better Place in Which to Live

Here is a howler from David Farrar of Kiwiblog–betraying his ignorance of recent history.  He writes:

Countries that don’t separate religion and state almost always are worse places to live  than those countries which do.

So those countries which made a great virtue out of being a-religious such as the Soviet Union, East Germany, the entire Eastern European bloc, and Pol Pot’s Cambodia (which modelled its ideology upon the doctrines of leading French Communists) were great places to live.  How anyone could suggest that anyone struggling to survive in the Killing Fields was living in one of the better places in the world beggars belief.  And in the present, those nations which still make a virtue out of secularism such as North Korea, Communist China, Myanmar, and Castro’s Cuba remain great places to live?  Try telling that to the thousands in North Korea’s concentration camps.  

Whatever planet Mr Farrar lives on, clearly it is not the third rock from the sun. 

To be fair, Mr Farrar was endeavouring to persuade us that the recently adopted Egyptian constitution was a bad deal.  In this we agree.
  But to suggest that secularism is a better foundation for government, justice and protecting the rights of minorities than religion represents a prodigious non-sequitur and Mr Farrar should know better.

Firstly, the tenets of a particular religion influencing government, law, justice, and rights are materially significant.  All religions are not created equal after all.  One suspects that the liberally effete Mr Farrar cannot bring himself publicly to criticise Islam and wishes to make his criticism more “principled” and acceptable to his audience.  Blame it on religion in general, not on one religion in particular–a favourite misdirection of atheists such as the late Christopher Hitchens.

Does Mr Farrar really mean to imply that there is no such thing as a Judeo-Christian legal tradition or ethic which has profoundly shaped the legal inheritance of most Western countries?  If so then his ignorance is breathtaking.  If not, then, is he suggesting that teaching people not to steal, murder, and lie in court is a bad thing and minatory to the rights of subjects?

Moreover, is Mr Farrar’s conception of religion so superficial that he fails to see that secularism is intensely religious in its own right.  Secular governments make judgements about the nature of life, marriage, death, birth, justice, sin, crime and punishment.  All of these judgements impose a set of ethics and morality which call upon ultimate values, mores and truth.  Secularism believes that gods and the Living God do not exist which itself constitutes a religious doctrine.  Secularism is one of the most intense religions of our day, but dishonestly so, for it’s sleight of hand in denying its own religious character. 

Finally, when Mr Farrar suggests that modern secular governments are “better” at protecting the rights of minorities, we suggest in return that he present that argument to the hundreds of thousands of children cut up and torn apart in their mothers’ wombs in this country and whose blood now calls out from the ground for justice and vengeance.  It is one of the great monuments to secularism’s achievements.  So much for the wonderful religion of secularism.  Rather than building a society which is a better place in which to live, it has made it one of the worst places to be condemned to death by lethal abortion.

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.

Salem Lives On

Modern Witch Trials

We have discussed previously the rash of unsafe prosecution and conviction of adults accused of child molestation–falsely and completely unjustly, as it later turns out.  In New Zealand we had our own horror trial in Christchurch (the Christchurch Civic Creche case) where adult caregivers were accused (and one convicted) of the most bizarre and horrendous crimes against children on the basis of child testimony.  It was all a crock.  (For the expose tour d’force, see Lynley Hood’s, A City Possessed: The Christchurch Civic Creche Case.  Publisher: Longacre Press, 2001.  Reviews of the book can be found, here.)

Yet at the time, and to this day, parents and others involved swear black and blue that the children were telling the truth (despite some of those children publicly recanting their testimony as they grew older).  This phenomenon was not isolated, but similar cases occurred in the United States, the UK, and in Europe.  Researchers have compared the hysteria to that on display in the witch trials of Salem in the seventeenth century.
  Funny how we used to think those folk back then were ignorant and primitive and prone to superstition.  Apparently that particular apple has stayed uncomfortably close to the tree.

Some time ago were were present during a court case where a father was accused of child molestation and the only witness was a five year old child. Some were flatly claiming that the child had to be believed because children do not lie.  It is that errant, ignorant belief which lies at much of the hysteria and subsequent injustice of these cases.

This, of course, is not to say that child molestation does not occur.  It does–sadly.  But it is to say that cases which depend solely upon the testimony of a child or children whose evidence has been coaxed out of them by “expert” adults are notoriously unsafe from the get-go.  The phenomenon has gone through a further iteration: now, as a result of the judicial abuse of accused innocently people, protocols and guidelines has been put in place for extracting more reliable evidence from infant accusers.  But that has only served to reinforce the conviction that children’s testimony is reliable and that “kids don’t lie”. 

The Guardian recently carried a review of a new movie on the subject.  It re-works the issues and makes the same fundamental points–something which we cannot hear too often, lest our own version of the Salem Witch Trials becomes perpetuated without end. 

The Hunt disputes the innocence of infants

Thomas Vinterberg’s account of small-town paedophilia panic troubles the idea that child accusers must always be believed.

Susse Wold and Annika Wedderkopp in Thomas Vinterberg’s The Hunt. Photograph: Charlotte Bruss-Christensen

We didn’t need the McAlpine affair to remind us that our era sustains a witch-hunt of which the middle ages might have been proud. Since the late 1970s, successive houndings of supposed paedophiles have done little to prevent the recurrence of the phenomenon. Lord McAlpine got off lightly compared to victims of panics in Cleveland and Orkney, or the people who had their homes besieged by chanting mobs in Portsmouth, or the Newcastle nursery workers subjected to a nine-year campaign of vilification, prosecution, prison violence, mob torment and official denunciation before being cleared of any wrongdoing in 2002. The documentary Witch Hunt, produced and narrated by Sean Penn in 2008, describes a Californian frenzy that saw a carpenter spend 15 years in prison for abuses that never occurred.

The underlying phenomenon is well enough understood. Human beings seem to need to vent their collective ire on a chosen peripheral group. Our current mania is buttressed by the genuine harm perpetrated by real child abusers, but it’s reinforced by another characteristic. As in the campaign against Salem’s witches, the key accusers are children.

We accept that adults may lie, but in recent years, in a reaction against scandals in which children’s well-founded allegations have been disregarded, we’ve come to resist the idea that, on occasion, children can lie as well. Child-endorsed denunciations have thus become immune from the doubt that might otherwise temper our vengefulness. In the Newcastle case, demonstrators paraded with banners saying: “we believe the kids”.

When children’s claims of abuse are nonetheless shown to be unfounded, we refuse to accord them blame. Overwhelmingly, we’ve come to insist that false allegations by children are mainly the fault of adults.
Often they have been. The Orkney accusers eventually revealed that they were bullied into testifying by their interrogators. Penn’s film is an indictment of the coercion of child witnesses. As a result of such cases, it’s come to be accepted that children give false accounts mainly because adults ask them leading questions: suggestible youngsters are merely trying to please their elders.

Because of this, the way juveniles are questioned has been intensively scrutinised. Elaborate protocols have been devised to ensure that children’s testimony is uncontaminated by the prior judgment of adults. This has made the testimony that results seem even more irrefutable. So we’re now urged as never before to accept what children say. “If a child tells you about abuse,” the Kidscape website enjoins us, “believe in what you are being told.” But what if the child is making it up?

With The Hunt, Dogme pioneer Thomas Vinterberg grasps this unpleasant nettle. The film’s story, of a tight-knit community turning on the victim of a false allegation, has been criticised as routine. Its wronged hero is a boring saint, and the villagers act out obvious enough roles. What might have been the most interesting part of the tale, the communal healing that (almost) takes place, is simply skipped over. Instead, it’s the infant accuser who takes centre-stage.

Seven-year-old Annika Wedderkopp puts in an extraordinary performance as the even younger Klara, whose murmured allegation destroys the life of a nursery-school teaching assistant. Adults push Klara into firming up her story; they exaggerate it and reject her withdrawals as attempts at repression. Nonetheless, they don’t invent it. Like the Newcastle demonstrators, the school’s headteacher declares: “I believe the children. They don’t lie.” But like Briony in Atonement, Klara is indeed lying, to avenge rejection.

A nursery school may sound an unlikely setting for such behaviour. Nonetheless, between them Wedderkopp and Vinterberg make Klara’s behaviour seem entirely persuasive. It’s not just her original impulse that rings true. Klara displays a complex mix of pique, sly precocity, emerging but still half-hearted conscience, passivity as an avoidance strategy, inability to challenge an adult’s robust narrative, muddled memory and genuine confusion that seems altogether convincing.

Vinterberg himself seems anxious about what he’s done. He says he’s unhappy that some filmgoers come out of the cinema hating Klara. He’s called her lie “innocent” and insists that children who participate in abuse hysteria should themselves be seen as victims. Maybe so. Still, anyone who sees this film will find it hard to entirely endorse the Kidscape view of children’s allegations.

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.

Easy Dupes, Our Bad

Breaking Silence, Part Deux

Macsyna King has been in the news again.  This time the context has altered somewhat.  The coroner investigating the death of her premature twins has placed the blame firmly upon her then derelict “husband”, Chris Kahui. It was impossible for Macsyna King to murder the children, the coroner concluded. By process of elimination, Kahui was the only one left to blame.  This must have come as a shock to a more than a few people.

Here was a woman who was vilified throughout the country as the indisputable murderess, a child killer, a swine, a monster, the lowest of the low, etc.  In fact, when Chris Kahui was charged it took the jury only a minute to declare him not guilty.

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. 

Breivik’s Brethren

 The Spirit of Terror in the West

Notorious killer, George Zimmerman has been released on bail.  Thus far, his notoriety derives from the apoplectic narrative coursing through sections of the US media.  Zimmerman, a community crime watch patrol member, has been arrested for shooting a black late-teen.  Whilst the public does not know what happened that night, racial demagogues have insisted that the shooting was a racist, murderous act. Fools rush to judgment.

Zimmerman’s release on bail has resulted in a rise of vigilante sentiment.
  The New Black Panthers have already put a bounty on Zimmerman’s head, dead or alive.  Strangely, the authorities–namely, the Department of Justice–seem to care not a whit.  Try issuing a bounty for the president, dead or alive and see what happens.  Justice in the United States, it would seem, is no longer blind but partially sighted.  

The vigilante spirit has poured forth on Twitter.  This from The Blaze:

Though the Associated Press described George Zimmerman’s release on a $150,000 bail as a “low-key” event, bloodthirsty individuals are already setting their sights on the man accused of killing 17-year old Trayvon Martin.
(Related: George Zimmerman Released From Florida Jail)
Twitchy captured a number of tweets on the topic, which included:

‘Ima kill Zimmerman myself *loads semi* where he at’
‘I think imma personally kill George Zimmerman…anyone’s welcome to join (: …Leggggoooo !’
‘I WOULD KILL DA SHYT OUTTA DAT ZIMMERMAN DUDE IF I SAW HIS A** BOAAAA’
‘Someone pass me a gun, imma go follow zimmerman, shoot and kill him and say #imstandingmyground’
‘Lets kill #zimmerman’
‘They let Zimmerman free lets kill that MF’
‘George Zimmerman Released From Jail 150,000 Bail! WTF!  Ni**a You Are About To Die, Start Writing Your Will!…

As Twitchy notes, the calls for violence include some “genius” posts, like this one, which confuses “double jeopardy” with being released on bail:

Once u been convicted of a crime & let out on bail u can’t be charged 2x for the same thing so that means sum1 gonna have to kill Zimmerman

One senses a genuine moral equivalence here between the sentiments above and terrorists doing their duty for Allah and Mr Breivik’s mass murder in Norway.  The last two believe that a great evil has been perpetrated and punishment has to be meted out.  They also accept that the punishment necessarily has to be exemplary–to prove a point.  It needs to be an act of theatre, to wake people up to the existence of the greater evil.  Both believe the authorities have become blind and are tools of wickedness.  Someone has to become an instrument of just vengeance.  Both alike claim vindication from a higher power.

Exactly the same kind of rationales could be credited to the vigilantes now riding in Zimmerman’s direction to right wrongs perceived by the own lights.  

The point is that the spirit of the Islamic terrorist, or the life force of  random, yet calculated murders of a Breivik, together with the spirit of these US vigilantes are present in every society.  When the law is politicized, when crime is ignored, and when evil is tolerated cockroaches come out from the sewers.  Civilisation is always only skin deep.  In all societies, the heart of darkness beats steadily, just below the surface.  To our knowledge, evil has not yet suffered a fatal heart attack–unless it be at Golgotha and the empty garden tomb.  If so, until the time all enemies have been placed under the feet of the risen, ascended Messiah, we must contend and fight against the vestiges and influences of wickedness which remain.

Consequently, “all that is necessary for the triumph of evil is that good men do nothing.” –Edmund Burke.  And, if the Messiah has risen, all good men must, and will, act.

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. 

Douglas Wilson’s Letter From America

Al-Awlaki and the Smell of Boiling Cabbage

Culture and Politics – A Second Battle of Tours
Written by Douglas Wilson
Saturday, October 01, 2011

A few days ago, a predator drone took out Anwar Al-Awlaki, an all-round bad guy, and American citizen. The ACLU (and Ron Paul and Gary Johnson) complained about it, saying that this was a violation of due process. Those who maintain we are in a state of war against terrorists are exasperated by the claim, saying, as Charles Krauthammer did, that the rebel soldiers at Pickett’s charge were not being served papers, even though (according to the Union account) the rebels were still all American citizens. The two sides were not divided by a cluster of attorneys swinging briefcases at each other.

A third position, neither fish nor fowl, is that of the Obama administration.
When it comes to things like Gitmo, the administration wants terrorists to be treated like criminals, to be tried in civilian courts, etc. But on the other hand, it was the Obama administration that ordered this strike. This is one of those “you can’t have it both ways” deals.

This inconsistency could be resolved by a “clear and present danger” argument. If a disturbed American citizen with a sniper rifle and twenty boxes of ammo climbs up on top of a water tower, and starts shooting at the citizenry, it is legitimate for law enforcement to take him out. His citizenry is irrelevant, and the processes that must be followed are those of a good SWAT team.

But in order to make this case, you have to make it. You can’t just assert that somebody on the other side of the world is being really bad according to (top secret) intelligence, and then show his photograph a number of times on the news in various scary ways. In order to do this legitimately, you have to show your people that an injustice is not being done, or they have to be able to see that for themselves.

From what I understand, this assassination of Awlaki is one that easily could have been justified, but which, for various reasons of political incoherence, has not been. Until such time as this incoherence is overcome, the protests are a healthy sign. A compelling explanation is necessary to justice, and not just necessary for PR reasons. And so I commmend two parties for a job well-done. I commend the military units that conducted the strike (and the ordering of the strike itself), and I commend those who are protesting the way it has been handled.

I condemn the attorneys in the White House and/or Justice Department for the smell of boiling cabbage that surrounds the whole thing.

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).

Sadder, But Wiser–Part III

An Open Letter to Forty Thousand Facebook Users

The case of the Kahui twins roils on.  It is easy to underestimate the public antipathy towards Macsyna King.  Then every so often we are reminded of how deep this runs.  Forty thousand people signed up to a Facebook page opposing the publication of a book which told her side of the story–almost overnight.  The loathing, hatred, and vituperation expressed there for this one woman–before she even spoke up–is a blot upon our society.

After all, the only way to this point we (the public) had known of her has been through media reports.
  To hold someone in such loathing and contempt solely on the basis of media reports–that is, on the basis of hearsay, rumour, gossip, and sensationalism–tells us that the old traditional Kiwi value of “fairness” has long since departed these shores.  Let’s be clear.  Trashing King’s public reputation was good for circulation and ratings–and the more lurid light in which she could be painted, the better the commercial and career outcomes for those media involved. Let’s never forget that we have all be used.

It is hard to credit that virtually all booksellers in New Zealand have refused to stock and sell Breaking Silence: The Kahui Case.  We cannot recall this ever happening before.  Why?  How can that be?  Having now read the book, we believe in time those booksellers will hang their corporate heads in shame.  They have been gulled. They deserve to go out of business.  They banned a book which at the time none of their PR department heads or senior executives or marketing people had even read.  Not one of them.  Here is how they “explained” themselves.

There have been growing calls for people to boycott the book and Paper Plus and The Warehouse said today they had listened to those calls.  Paper Plus CEO Rob Smith said the company had received a lot of feedback from customers about the book.

“We have also been in close consultation with our franchise holders and staff to understand their position on this subject,” Smith said.  “The prevailing opinion is that our stores do not feel comfortable selling this book and our customers do not want to buy it.  “This is certainly not about censorship or Paper Plus taking the moral high ground. We are simply listening to our most important stakeholders and acting in accordance with their feelings.”

The Warehouse general manager of merchandise Nick Tuck said the chain had also had a lot of feedback from customers asking it not to stock the book.  “We have listened to its customers and The Warehouse has chosen not to stock the book.”

Now bear in mind that none of these “stakeholders” (don’t you just love that management psycho-pop-babble) had actually read the book.  It had not been yet released.  The “stakeholders” had to be reacting on gut emotion, hearsay, slander, fear, and hatred.  And the booksellers folded.  Where is a real corporate leader with genuine courage, like Ralph Norris when you need him?

(Whitcoulls was the only book chain to our knowledge whose senior management said they would actually read the book before deciding whether to stock it.  In the end it did decide to stock the book, and donate all proceeds to charity.  Well, then.  Clearly they want to be in the bookselling business–and we wish them every success.  We must make a point of shopping there a bit more regularly.  In the final analysis, the lurid actions of the mob may actually enhance the book’s sales.  We have already been asked where it can be bought.  [Incidentally, if you are not near a Whitcoulls outlet, get it direct from the author, Ian Wishart, here.]  The internet is the biggest bookseller on the planet–and will only consolidate its pre-eminence here if NZ booksellers refuse to sell books.) 

Returning to the scandalous public hatred of Macsyna King, someone will say there was a public trial so we learned all the dirty truth about her (via media reports, of course).  There surely was a public trial.  Who was on trial?  Not Macsyna King.  King’s de facto, Chris Kahui, father of the twins was on trial.  But the strategy of the defence was to paint King in the worst possible light, deflecting the attention of the jury (and the media) away from Mr Kahui on to an allegedly wicked, and thoroughly despicable mother.  The defence was definitively clear: it asserted Macsyna King was the guilty party.  It effectively put the mother on trial.

The Crown was not there to defend Macsyna King, but to prove beyond reasonable doubt that Mr Kahui was the perpetrator (which, of course, it failed to do to the satisfaction of the jury, since Mr Kahui was acquitted in record time).  So a great deal of rubbish, innuendo, slurs, and falsehoods put out by the defence about Macsyna King went out unchallenged and unexamined, and yet dutifully reported upon.  She, however, was not on trial–except in the court of public opinion which has heard a grossly distorted version of the facts. 

In the Kahui case, the question to which everyone returns is, Who killed the twins?  Amidst all the frenzied attacks and slurs against Macsyna King we suspect some fundamentals have been forgotten.

1.  On the night in which the twins received the injuries which eventually killed them, Macsyna King was not with them all night.  She was out with her sister, Emily.  This fact is beyond doubt and has been corroborated in several ways.  Wishart’s book summarises the evidence and corroborations.  The twins were left in the care of their father, Chris Kahui who was in the house with them–all night.  He went in to where they were sleeping to feed them (several times, possibly). 

2. Now this raises a rather perplexing question.  If Macsyna King was not in the house all that night, how on earth could she have inflicted the injuries upon the twins that would eventually kill them?  How, pray tell, could she be guilty?  Maybe she is a demon woman who can kill at a distance by thought waves.  Yup, the baying mob are probably sufficiently dumb and inchoate as to believe something like that.  Well, actually the defence at trial suggested that she snuck back into the house, past the four or five adults who were resident there that night and beat the twins up without anyone being the wiser.  Well, yes she could have done something like that.  We have already made up our minds that she is a Devil Woman, have we not? 

Then there were other subterfuges.  It was suggested that King could have inflicted the injuries hours, or even days before and then suddenly, later that night, the twins stopped breathing.  But the consistent evidence presented at trial was that the babies seemed just fine right up to the time when King left–feeding, contented, in no pain.  Medically trained people had seen, inspected, and handled the babies in the days leading up to their injuries and had pronounced them fit, and doing well. 

Let’s be definitive. There is no evidence whatsoever that Macsyna King killed her babies.  None.  Nada.  She was not there at the time they received the injuries which killed them.  That is why she was never charged with the crime.  Read the book to get the evidence and the facts straight.  Might as well charge the Duke of Edinburgh with the twin’s murders if lack of evidence is no obstacle.  Prince Phillip–baby killer.  It has a good ring to it.  The republicans amongst us could exploit it to the max.

Yes, Macsyna King has been immoral, drunk, lawless, and a user of drugs.  She has been offensive, rude, bullying, and belligerent.  So has the entire Kahui clan, Mr Kahui, father of the twins, included.  But that does not make any of them murderers or baby killers.

Now we come to something which forty thousand Facebook mobbies must face up to.  If Macsyna King clearly did not harm and thus kill her own babies, why do you hate her so?  Some will say, “Well, I thought she did, and so I hated her for it”.  Fair enough.  But you were wrong.  She did not kill her twins.  So either you owe her a public apology–yes a public apology, since you condemned her publicly via Facebook–or there is something else to your loathing which is unrelated to the issue of murder.  What might that be?

We speculate now, but we suspect it would have something to do with the things which King has done and the way she has lived her life.  These have made her hateful in your eyes.  If so, we would simply say this, if you are without any of these sins yourself, you may cast the stones.  But if not . . .?  And if you believe yourself pure and untouched by any such evil, then why focus on just this one person as the object of your loathing.  Surely, to be consistent and without hypocrisy, you would likewise have to hate and loathe your neighbour down the street or, for that matter, most of the population of New Zealand.

No, none of this washes.  We invite you all to apologise publicly to Macsyna and ask her to forgive you–its easy, just get back on Facebook and do the decent thing.  But then again you have refused to read the book, Breaking Silence.  You have not wanted to listen to King. You have rather wanted to nurse your hatred of her, because, let’s face it, that somehow makes us all feel better, superior in some odious little way. 

Macsyna King has been gravely wronged.  Decency and fairness means we have got to try to put it right. 

>Burdens of Proof

>Letting the Guilty Go Free Can Be Very Good

Folk in the United States have been wound up over the Casey Anthony murder trial.  Since the jury failed to convict the mother of murdering her four year old daughter there has been much venting of spleen.  The jurors have been smeared as idiots with the IQ of brute beasts.

For our part, we believe the jury got it precisely right.  One juror being interviewed afterwards was accosted by her interlocutor with the question, “Well, who did kill the child?” and she quite rightly responded, “I do not know.”  But not knowing is regarded by many as a fundamental dereliction of duty.  The Commentariat was sure that the mother was guilty–if the jury was not equally sure it had to be either prejudiced or obtuse or both.

Yet “beyond reasonable doubt” is a very high standard of proof.  The state failed to meet that standard.

>The Coming Race

>An Offensive Mirror

We are simple souls, and so find ourselves “conflicted” (to use pop psych jargon) over the public vituperate musings about one Macsyna King.  How we love a mob.  All heat and no light.  A dirty bomb.

Macsyna is coming out of the closet via a book, written by Ian Wishart.  The mob has called for the book to be banned, via boycott, successfully pressuring booksellers not to carry it.  She was the mother of murdered (or manslaughtered) infant twins, Chris and Cru Kahui.  The court acquitted her current boyfriend (and father of the twins) of responsibility for their deaths.  No-one else has been charged.  The defence argued that Macsyna was their killer.
If the court evidence is to be believed, King has been both wretched and depraved.

>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: