Protection of the guilty

Economics and criminal defence lawyering ... The creation of a GETGO system ... Ethical rules and the twiddly bits ... Prosecutors are meant to stand still, while the other side does all the shooting ... How do I know whether I am guilty or not until I have seen the evidence? (Irish joke)

In 1996 the former chairman of the Australian National Companies and Securities Commission, Henry Bosch, said:

"Our legal procedures [are] too open to the power of money."

In some countries, that would mean money paid to judges, but in Australia, it means money paid to lawyers.

Lawyers want the law to be open to the power of money. Money paid to them, that is.

And they want everyone to know it.

In the criminal law, for a guilty person, paying a lawyer must increase the odds of "getting off", and be seen to do so.

Prior to around 1800 in England, the odds that a lawyer could get you off (via lawyering) were not good.

A 14th century verse went:

"He will take 40 pence to take down his hood,
And speak for you a word or two and do you little good." 

Accordingly, there were few lawyers in the criminal courts. According to Justice David Ipp, the judges who ran them were, "inquisitorial, arrogant, ruthless judges" (ABC Radio National, The Law Report, January 9, 1996).

According to this article on the historical development of trial procedures at the Old Bailey:

"There was no presumption of innocence (until the early nineteenth century), and no right to remain silent."

All that (and much more) had to go if criminal lawyering was to become a profitable occupation. It was the economics of criminal defence lawyering, not tender concern for innocent defendants, that brought "adversarial" court procedure into existence.

Adversarial procedure creates a GETGO (Get The Guilty Off) system.

The creators of this system did not want to protect the innocent. They wanted to be able to protect the guilty. (If they paid.)

There was no big big "Apalachian conference" of lawyers, judges and legislators that established "adversarialism".

Instead, criminal defence lawyers established obstacles to truth ascertainment one obstacle at a time, on a case by case basis, with the consent and connivance of the judges.

Each obstacle (e.g. some information is "privileged" from disclosure) established a precedent and each precedent was "law". Nowadays, each obstacle is described as a valuable protection which preserves and enhances civil liberties, or some such thing.

The two most important GETGO "reforms" were that lawyers took over the running of the criminal courts from the judges, and devalued the search for the truth, the general theory being that:

"Sometimes, in our legal system, the truth must be sacrificed for more important principles."

Langbein: charted the eclipse of a judge-dominated system Researchers into the period owe a huge debt to US law professor John Langbein:
 
According to an authoritative book review:

"John Langbein's "Origins of Adversary Criminal Trial" charts the eclipse of a judge-dominated system which was ... 'merely neglectful of the truth' by that of a 'lawyer-dominated' trial, which was explicitly 'truth-defeating'."

In a 2004 interview John Langbein said:

"The idea that having one pack of lawyers and investigators saying, 'You did it,' and another pack saying, 'We didn't,' and nobody actually looking for what actually happened, nobody having an interest in investigating the truth, is a big mistake. No other civilization does it. All other legal systems except those that are based on English law like our own have a more truth-centered system in which the prosecutor is basically a judge and is conducting a public investigation ... and in the result, trials become more rapid and less combative."

GETGO obviously requires that lawyers are allowed to knowingly get the guilty off. The "modern" law on this was established by Courvoisier's case in 1840 where the client told his lawyers that he was guilty of murder and they, at trial, both before and after that confession, pointed the finger at someone else.

Defending (and accepting fees from) people known to be guilty became legitimate and ethical. It still is, subject to a few twiddly bits: e.g. Rule 33(b)(i) of the NSW Barristers' Rules:

"A barrister must not falsely suggest that some other person committed the offence charged."

Presumably it is OK to honestly suggest it. (Advocacy "ethics" rules should not be taken seriously - they are just window dressing for the GETGO system.)

Lawyer: foot in the mouth of truthThe introduction of the GETGO system needed to be marketed to the guilty punters, but the cartoonists of the time did a fairly good job of that - for example.

The GETGO system has been centuries in the making, but some obstacles are of relatively recent provenance, such as the duty of the prosecution to provide the accused with the entirety of the prosecution evidence, plus anything else in the prosecution's possession that might help the accused get off.

The general idea is that "the accused must not be deprived of the chance of an acquittal", which is a lot different from "deprive the accused of a chance to establish the truth".

I am not denying that the accused should be supplied, well in advance, with a copy of the charges and details of the factual allegations (e.g. time, place, what allegedly occurred etc) 

What is in issue is the handing over of the entirety of the police evidence to the defence, in advance.

How many crooked cops would the Wood Royal Commission have caught out, if it had disclosed all that it had on them, before asking them what their defence was?

Unlike a criminal court, Wood (even at the hearings stage) was allowed to hold stuff back until the suspects had first denied things the commission could incontrovertibly prove.

The real reason why defence lawyers want disclosure of evidence was set out in the novel The History of Tom Jones over two and a half centuries ago:

"There is nothing so dangerous as a question which comes by surprize on a man whose business it is to conceal truth, or to defend falsehood. For which reason those worthy personages, whose noble office it is to save the lives of their fellow-creatures at the Old Bailey, take the utmost care, by frequent previous examination, to divine every question which may be asked their clients on the day of tryal, that they may be supplyed with proper and ready answers, which the most fertile invention cannot supply in an instant. Besides, the sudden and violent impulse on the blood, occasioned by these surprizes, causes frequently such an alteration in the countenance, that the man is obliged to give evidence against himself. And such indeed were the alterations which the countenance of Blifil underwent from this sudden question, that we can scarce blame the eagerness of Mrs. Miller, who immediately cryed out, "Guilty, upon my honour! guilty, upon my soul!"

Prosecutors must disclose all the "dirt" they have on their own witnesses too, while defence lawyers are under no such duty as to theirs.

This leads some prosecution witnesses to think that prosecutor lawyers are betraying them in what they thought was a "fair fight".

Prosecutors must pin themselves down in advance. Defence lawyers can secretly chop and change their defence by the hour, and often never disclose (invent) one at all.

Victorian prosecutor Carolyn Burnside at the moment stands accused of not disclosing enough evidence to the defence in a child sexual abuse case.

The comments that this has elicited in Justinian make interesting reading.

Oh, the joys of being a prosecutor in a GETGO system.

It's a bit like being in a "duel" where only one side gets to shoot (repeatedly) and the other has to stand very still.

P.S. On Boxing Day, the media raised another GETGO situation.

"More than half the low-range drink-drivers caught by police (in NSW) are walking out of some Sydney courts without a conviction."

The key issues, for which statistics are not available, are how many of these drunk drivers were lawyered, how much did they pay their lawyer?

Guilty drunk drivers buy "no conviction" off lawyers, with the magistracy complicit in the scam.

"To no one will we sell ... justice."
Magna Carta, 1215.

I guess it's OK if it's lawyers who are doing the selling.