September 21 2023

No Defence: lawyers & the myth of infallibility

No Defence: lawyers & the myth of infallibility

Barbed wire pic by Terry Freeman, from Flickr

Legal systems lie in the vulnerable position between the rock of justice and fairness and the hard place of workability and social control. Defence lawyers may be motivated by the former and thwarted by the latter.

The great failing of the legal system as an institutional structure lies not in the vulnerability itself but in its denial of this vulnerability.

  • This article was written by Julie Price and Dr Dennis Eady of Cardiff Law School Innocence Project
  • This essay appears in No defence: miscarriages of justice and lawyers which is that latest publication in the Justice Gap series and follows on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (published in association with Solicitors Journal and Wilmington shortly). You can download Wrongly Accused HERE.
  • Contributors for No Defence include Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis FitzGibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.
  • Pic: Barbed wire by Terry Freeman.

This denial involves the internalisation of a curious ‘doublethink’ which allows the belief and public persona of scrupulous fairness to live alongside a day-to-day compromise of negotiation and rationalisation. The investigation of crime is an uncertain process involving complex human interactions, the frailty of human memory and perception, and at times the failure of human integrity. Add to this the uncertainties and conflicting interpretation of medical, psychological and physical science and the murky world of informants, deals and plea bargaining. The interpretation of the different versions of the truth is then fought out in an adversarial tactical court room battle, where the jury hears not  ‘the whole truth ‘ but, usually two, carefully selected and choreographed accounts that may involve highly complex issues from science to human emotion.

These uncertainties are, in the main, probably inevitable and unavoidable and the adversarial system and certainly the jury system has much to commend it (although many variations and improvements to the jury system could be considered and a more ethical adversarialism might be desirable). The real failing lies with the notion that the decision of the jury must be upheld regardless of whether it is right or wrong. Our appeal system tends to guard that principle at all costs, the implications of which many jurors may not realise at the time they make their decision.

The myth of infallibility
The mythological basis of the Crown Court system is epitomised by the fact that a jury decision still cannot be reviewed, 20 years on from the Royal Commission on Criminal Justice 1993 which recommended that it should. It is patently absurd to think that twelve fallible human beings with no experience or evidence of aptitude could unravel the often complex labyrinth of information presented at a major trial and inevitably come to the right decision. It may be the best system we have but that does not justify perpetuating the myth that it is an infallible one.

 ‘As for the men in power, they are so anxious to establish the myth of infallibility that they do their utmost to ignore truth.’
Boris Pasternak

The notion perpetuated by the Court of Appeal that to review a jury decision would undermine the jury as an institution has no more validity than to suggest that the employment of video technology in international cricket would undermine the role of the umpire. On the contrary, safeguards enhance the integrity of such institutions by recognising that they cannot always be right and by ensuring the primary aim of establishing the correct version of what actually happened.

So where does this leave the defence lawyer?
The  ‘infallible jury’ myth is of course a failing of the appeal system, but as long as this situation persists the defence lawyer at trial faces an onerous responsibility. If he or she fails to ‘do justice’ to the defendant’s case, there is unlikely to be any way back. Indeed, even if they do all that they reasonably can, truth and justice may still be lost forever. Appeal lawyers, campaigners, journalists and Innocence Projects may engage in a post-trial struggle to achieve the justice lost at trial but they will face gargantuan hurdles in the form of the myth of jury infallibility.

The need for defence lawyers to interrogate the evidence, used and unused, with great diligence and to cover every base in preparing for trial (and whether they actually do this adequately) will no doubt be a theme for this latest collection. However there is another realm of uncertainty that defence lawyers routinely face as a consequence of the impact of workability and compromise within the trial process itself. It is this aspect of a defence lawyer’s work that this essay considers.

Between us, we have encountered many cases where these dilemmas may have resulted in decisions or capitulations which throw doubt on the reality of the notion of a fair trial. Our argument is that if the concept of jury infallibility is to continue, and we strongly believe that it should not, the way that trials are set up and undertaken should be scrupulously fair. We have direct experience that this is not always the case, and defence lawyers, albeit placed in an invidious position, may not, in some cases, have advised and supported their clients adequately. The examples proffered here hail from our joint seven years running Cardiff Law School Innocence Project and over 20 years of campaigning on high-profile miscarriage of justice cases.

Stopping a trial?
A decision to stop a trial is a massive and expensive one, which judges are naturally reluctant to take.

Case 1: One defendant described to us how his lawyer discussed the option of requesting a retrial with him after the discovery that a member of the jury was the cousin of the second in command of the police investigation. The barrister stressed it was the client’s decision and asked his client the direct question: ‘Do you want to request a new trial?’; while gently shaking his head as he spoke. Once the issue is discussed with the client it becomes the client’s decision in the view of the appeal courts, despite the natural and eminently reasonable inclination to take the advice, subtle or overt, of the professional lawyer. The Criminal Cases Review Commission’s (CCRC) response to this issue was to state (on the basis that the issue was discussed at the trial) that the jury member had had no contact with his cousin ‘over the case or indeed at all for some considerable time’ and that in any event the second in command of the investigation did not play an active part in the investigation! Ironically, if true, this latter assertion might explain a lot about the way the investigation was conducted and supervised. Given that the defendants in this case remain (wrongly in our view) in prison nearly 20 years later, perhaps the importance of this ‘infallible’ jury being seen to undertake its secret deliberations without the risk of contamination should be re-considered. The defence lawyer’s failure to seek a new jury and the CCRC’s assessment of the importance of this should arguably be more open to question.

Defence lawyers: expectations of the CCRC and Court of Appeal
At this point it is relevant to reflect on the expectations that the CCRC/Court of Appeal have of defence lawyers.

Case 2: In a case recently rejected by the CCRC, Cardiff’s Innocence Project had provided a report by an eminently qualified police expert identifying major concerns and anomalies in the police investigation. In essence the CCRC response was that there was ‘no reasonable explanation for not adducing this evidence at trial’. If this conclusion is to be accepted, and to hold water, one has also to accept that defence lawyers are expected not only to have specialist knowledge of police investigations (which may not be an entirely unreasonable expectation) but also to know the subtle techniques and idiosyncrasies that might corrupt an investigation and which in reality would only be apparent to someone with direct experience of working on police investigations for many years. Furthermore even in the unlikely event that the defence lawyer could detect such things by scrupulous examination and insightful interpretation of the investigation paperwork (if indeed this was fully disclosed, which is not always the case) then they would face the bizarre and very risky task of conducting a defence on the basis that the investigation on which the prosecution was founded was corrupt. While it might be routine to question the actions and motives of individual police officers in cross-examination, defence lawyers cannot reasonably be expected to discover, interpret, expose and undermine the foundations of an investigation at the trial stage. Not only would such an approach be impractical, but it would probably be considered scurrilous by the Court.

A brief account of other situations we have encountered may help to illustrate the obstacles and dilemmas faced by defence lawyers within compromised trial processes:

Case 3: Some 18 days into the trial of two defendants our client’s co-defendant changed his plea to guilty. A detailed prosecution case had been founded and presented based to a large degree on the incrimination of our client by his co-defendant. This was not a minor hint of prejudicial information but a wholly prejudiced prosecution case and would seem to be a clear case of the need for a re-trial. What happened however was simply a debate about whether the first defendant should now be called to give evidence? No doubt largely in the dark about what he might now say, the defence initially opposed the prosecution’s wish to call this witness. The judge however allowed his evidence, but the prosecution then decided not to call him, presumably fearing his new position might not after all support their case. The legal system however, with its mindful understanding of how human beings think, believes that such problems can be easily overcome by a warning to the jury not to be influenced by what they have heard. This situation in some ways mirrors the notorious case of Ray Gilbert and John Kamara where the former pleaded guilty during the trial. John Kamara was later cleared after serving nearly 20 years while Ray Gilbert, who since the trial has maintained innocence, remains imprisoned after 32 years. Again the logic of sustaining a prosecution case against Mr Gilbert based at trial on two specific people acting together, when one has now been cleared, is a rationalising of principle that only legal doublethink can accommodate.

Case 4: The status of the key prosecution witness in this case changed from suspect to witness and back to suspect and then to defendant on a lesser charge. To be fair, the defence made creditable efforts to convince the court of various irrationalities in this person’s evidence and the fact that they were as likely a suspect as the other defendants. However the  ‘bargain’ had been struck before the trial and their efforts proved unsuccessful for our client.  There are some parallels here with another notorious miscarriage of justice case, that of the so-called Merthyr Three, where a very young witness was re-designated from suspect to witness on the condition that she gave incriminating information, a move that enabled some convenient bypassing of the rules in place to protect suspects in police custody.

Case 5: In this case, as with the preceding case, the dye was cast before the trial began, leaving the defence powerless, it seems, to question the situation. The original defendant once convicted of murder at his own trial soon after reversed his position of not guilty and admitted the killing. However, he claimed firstly that he had acted in self-defence and secondly that others, including our client, hired him to carry out the crime. According to our client the defence did not, or were not able to, thoroughly interrogate the process of case construction between the police, the convicted murderer-turned-chief prosecution witness, and his array of prison visitors-turned prosecution witnesses. The problem of criminal witnesses invariably runs the risk of compromising justice but in this case a curious question arises: the judge explained to the jury that they must first decide whether the prosecution’s chief witness was telling the truth in saying that he acted in self-defence. The judge stated that if they decided he was being truthful about this the defendants could not have been guilty of conspiracy to involvement in the murder and the case would be dismissed. The jury did not believe him and the trial continued with consequent convictions.

However two questions arise here: firstly, if the jury had believed that the killing had been in self-defence this would have been in direct contradiction to the original jury which convicted of murder in the face of a not guilty plea. In a sense this amounts to a re-trial within a trial with a new jury – would the convicted murderer have grounds for appeal in this situation given that the jury in another trial reached a different view to the jury in his own trial? Secondly it illustrates how defence lawyers and defendants are faced with a state of rationalisation where the jury is allowed to believe that the chief prosecution witness is lying on the most fundamental issue, yet truthful on all the other matters. Contrary to the notion that the cards are stacked in favour of the defendant, the opposite is true, and defence lawyers must struggle within these contradictions and confines.

Case 6: Sometimes, however, defence lawyers may agree to strategies that in retrospect fail to do justice for their clients. In this case instead of calling the medical experts for proper cross-examination on the most crucial issue in the case, the defence agreed with the prosecution that the experts should not be called and that an agreed joint statement should simply be presented to the jury. The joint statement, however, stated what the experts agreed on and not what they disagreed on, when in fact their conclusions on the strength of the evidence were entirely different, with one expert seeing no real alternative to the prosecution scenario and the other seeing no convincing evidence. The judge, at the end of the trial, confided in the absence of the jury that ‘perhaps it is regrettable that we did not hear from the medical experts… but now the jury have to do their best on the evidence they have got.’ With the appeal system so stacked against the defendant, defence lawyers must be careful not to damage the chances for their client through such approaches that may be policed in such an arguably cavalier/pragmatic manner by judges.

Case 7: This case involved not only a principle witness with a serious criminal record but the granting of anonymity to that witness. Again, the defence pleaded the case that their position was seriously compromised, but without success.

Case 8: This was a classic case of conviction by volume of accusations of historical abuse. The defence succeeded in showing most of the charges to be highly doubtful and our client was acquitted of most charges. However, this did not convince the jury that there was in fact no smoke without fire and serious convictions were obtained.

Further examples from our past cases could also be given, where defence lawyers struggle to convey to the courts the implications of certain practices:

Case 9: the supervised police station meeting between the original suspects that led to a body of evidence against the new suspects;

Case 10: the meeting arranged by the police immediately prior to the trial between a co-defendant who had become the chief prosecution witness and a reluctant witness who needed persuading to give the ‘right’ evidence.

In our experience, defence lawyers very rarely achieve protection for their clients in these  ‘procedural’ matters. Sometimes this seems to be through ill-judged ‘tactics’ (judgement calls) or lack of resolution, but more often it is simply the determination of judges that the trial should proceed unhindered, motivated by financial and case management task masters.

Good lawyer or bad lawyer?
Many clients are deeply critical of their defence lawyers. While sometimes this is justified, our reviews also often reveal the thoroughness and professionalism that some take in examining the evidence.  When it comes to trial, however, they may be faced with dilemmas and rationalisations that undermine all the hard work that has gone before. Ultimately one wonders how often lawyers ask themselves the question: If I stand firm on this point of principle, will it help my clients or ultimately make things worse for them by enraging the judge? It is an unenviable dilemma but the damage for the lawyer is mitigated by their professional cloak. They are acting on their client’s instructions, whether or not the client fully understands the implications, and the appeal court will ultimately hold on to the, usually disingenuous, claim that it was the client’s decision.

‘The human mind isn’t a terribly logical or consistent place. Most people, given the choice to face a hideous or terrifying truth or to conveniently avoid it, choose the convenience and peace of normality. That doesn’t make them strong or weak people, or good or bad people. It just makes them people.’
Jim Butcher, TurnCoat, the 11th book in the Dresden Files series by. (A fantasy novel, yes, but we know that often the truth is stranger than fiction)

To err is human; to steadfastly decline to recognise and correct human error is inhumane. The prospects for wrongly convicted people are fundamentally burdened by seemingly intractable hurdles. At the heart of this is the appeal system’s denial of the fallibility of human institutions, ironically a denial of the very reason for the appeal system’s existence.