Yes, the law can be an ass

Yes, the law can be an ass

A good book review by John Silvester and Andrew Rule The Age September 18, 2010

Author Evan WhittonPassing judgment: After 30 years covering crime, corruption and courts, Evan Whitton has delivered some damning verdicts. Photo: Jim Rice

IT is an often-repeated truth that journalists sit somewhere between dung beetles and vampire bats in the pecking order of life.

Cynical old hacks on travel junkets will write that a fly-blown hotel in Bongo Congo is the new honeymoon hotspot in exchange for beer nuts and access to an airline executive lounge.

Subeditors usually have criminal records and cannot be trusted to enter public spaces during daylight hours. They are kept in darkened rooms where they are fed swill laced with animal tranquillisers in return for writing pun headlines (see above).

Photographers have pupils the size of pinheads, wear jeans made by prison inmates and appear to live on a diet of adrenaline, sugary drinks and salt-and-vinegar crisps. They all drive cars very fast and several actually have licences.

And yet there is a handful in the trade who can be considered craftsmen; journalists such as Les Carlyon, Harry Gordon and Evan Whitton have been the moral compass for those who have followed for decades.

Whitton is a self-declared reptile of the press who learnt his trade at the now-defunct Melbourne Truth. He wrote consumer affairs stories and dabbled, as he put it, in crafting ”soft porn” for the masses.

Someone had to do it.

While the more respectable daily papers ignored or lampooned corruption whistleblower Dr Bertram Wainer, Whitton helped find him forums to air his revelations that some of the state’s best-known detectives accepted bribes from abortionists.

Wainer’s campaigns resulted in not one but two royal commissions on police, the Kaye inquiry (1970) and the Beach inquiry (1975-76).

Whitton has spent 30 years covering crime, corruption and courts, using a keen eye, an inquisitive mind and rare research talents to produce unique essays that shine lights into dark places. His opinions are backed by facts, and the former journalist of the year has concluded our court system is irreparably broken.

Even more startlingly, he has discovered there is something morally lower than a working hack from the press: criminal lawyers. It would appear he believes such creatures think that Integrity is a small island in the South Pacific and Scruples a board game played following after-dinner mints.

Our Corrupt Legal SystemHe argues in his new book Our Corrupt Legal System, Why Everyone is a Victim (Except Rich Criminals) that the British adversarial system has failed and we should move to the European inquisitorial model.

He says the European system is cleaner and less open to abuse than our present process, which is unnecessarily complicated and designed not to discover but to hide the truth. He believes lawyers, judges and politicians (many of them former lawyers) are wedded to a process that is too expensive and fails too often.

He writes that the European model empowers judges to find evidence and discourages lawyers from concealing it. Trials are quicker and more just.

There are certain undeniable facts that show our trial process is in desperate need of review. Suspects can be jailed for more than a year before trial, evidence that is beyond dispute can be concealed from juries and witnesses can be forced to relive their nightmares through marathon cross-examinations.

Sometimes, image is more important than reality. Suspects are taught how to act and behave inside court. Tattooed arms are covered with business shirts, while tatts on the hands are concealed with Band-Aids and make-up.

One notorious killer arrived in a suit and wearing librarian-style glasses despite having perfect vision. The lenses were clear glass.

A bikie appeared in a collar and tie and listened in silence as his brief told the judge his client was now reformed. It was only after he was freed on a suspended sentence that he removed his shirt on the steps of the court to show he was still wearing a Hells Angels T-shirt.

An Asian gangster needed an interpreter in court because he could not understand English. This surprised the detective who had extradited him from Britain and sat next to the suspect as he laughed at old Benny Hill skits on the plane’s comedy channel.

”The adversary system is biased against people in business, industry, medicine and the media and in favour of criminals,” Whitton writes. ”The bias makes business for trial lawyers and the rule of law a joke in the worst possible taste.”

Lawyers work for their clients and routinely ignore facts that do not suit their arguments, he says. ”Controlling evidence enables them to omit the damaging bits; spin out the pre-trial and trial process; procure enough pelf to retire comfortably, if they choose, to the social status of untrained, uninformed and passive judge.

”Judges, of course, do the decent thing: they try to stay awake.”

He quotes an Andrew Denton interview with Sydney lawyer and sometime media observer Stuart Littlemore, QC, on Channel Seven as proof that justice runs a distant second to self-interest.

Littlemore: I mean, you really feel you’ve done something when you’ve got the guilty off. Anyone can get an innocent person off; I mean they shouldn’t be on trial. But the guilty – that’s the challenge.”

Denton: Don’t you in some sense share in their guilt?

Littlemore: Not at all.

Lawyer John Marsden wrote in his biography I Am What I Am how he twisted a sex victim’s words in the witness box until ”crying and under stress, she ended up agreeing – and in that moment I knew we had won … I am not proud of my conduct that day, but … I had to act according to the ethics of my profession … I had a job to do and I did it.”

His client was Ivan Milat, who would later rape and murder seven backpackers.

Whitton says it is not only defence lawyers who conspire and conceal – prosecutors can be just as bad. (The exception would be the dashing and debonair Director of Public Prosecutions Jeremy Rapke, QC, or any of his team with the power to launch contempt proceedings – which could end with your columnists sharing prison accommodation with Turkish drug dealers.)

Prosecutors, Whitton concludes, ”must know the system is unfairly rigged against victims, detectives, jurors, the community and themselves … and some try to balance defence lawyers’ dirty tricks with their own. The win-at all-costs culture thus gets the worst of both worlds. Criminals get off and the innocent – particularly the poor and those whose colour is different from those in the majority – go to prison.”

Only lawyers profit, according to the veteran observer: ”The system is immoral because, apart from everything else, it does not search for the truth.”

Whitton raises plenty of food for thought. Pass the beer nuts.

8 Responses to “Yes, the law can be an ass”

  1. Norman Scarth Says:

    It is refreshing to read such truths from Evan Whitton, but he doen’t tell ‘The WHOLE Truth’.
    (1) The civil courts are at least as bad as the criminal courts.
    (2) He says “lawyers may retire comfortably, if they choose, to the social status of untrained, uninformed and passive judge.” and ”Judges, of course, do the decent thing: they try to stay awake.”

    By implying they are harmless creatures, he is letting the biggest villains off the hook. They are in fact the worst of the lot, a ‘JUDICIAL MAFIA’. ALL lawyers have a hatred of the Litigant In Person which equals that of the Nazis for the Jews. One would hope that the lawyer who swears the Judicial Oath would put that hatred to one side. On the contrary, it increases – & he has the power to exact revenge! The LIP who has studied the law & presents his case well will be treated worst of all. Admitted by Lord Woolf (Master of the Rolls, top civil judge in Britain) in his ‘ACCESS TO JUSTICE: Interim Report, 1995′. The admission was deleted from his FINAL REPORT, published a couple of years later. A lawyer is a person with ‘A Conscience for Hire’. On entering the profession, they sell their souls to the Devil. As for the Inquisitorial System being better than our Adversorial one. It may well be: however, ‘BETTER A BAD SYSTEM RUN BY GOOD PEOPLE, THAN A GOOD SYSTEM RUN BY BAD PEOPLE’. We have a bad system run by VERY bad people!

  2. Norman Scarth Says:

    ‘THE LAW IS AN ASS’? Often said, but it is an outrageous slur on a humble beast of burden which has served mankind well for thousands of years. Not so the lawyer!

  3. Colin Peters Says:

    Norman knows his subject well through his own experiences. I was the expert witness, actually in the wtness box and under oath, who was forbidden by the judge to give the evidence that would have given the lie to the claims made against him and hopefully prevented his unjust conviction.

    As Evan Whitton states in his book, the truth is often kept away from the jury, and I have seen this for myself.

    I mention several Victims of the System in my own review of Evan Whittons excellent book but am unable to paste it into this posting, so if you are able to Sabine, I would appreciate it.
    My Best Wishes to all Victims of The System.

  4. Evan Whitton Says:

    Dear Sabine,

    Many thanks for putting up the review and thanks also for the comments.

    An American friend who got the reivew said it is odd that judges seem to have escaped the odium attached to lawyers. He said judges have the power to make changes to the system, but don’t. I replied:

    Dear Ted,

    I’m doing my tiny best to alter the perception of judges.

    I dropped a piece called Sophistry watch on OpEd News on Sep 1. Here’s some of it:

    Court reporters and legal analysts should be trained in sophistry in order to recognise it, when it issues from the mouths of judges and lawyers, and to then tick it off for their customers.

    Sophistry is the art of lying. A liar tries to persuade others to believe things he believes to be false. The motive is gain. The Sophists taught Athenian lawyers how to do it 2500 years ago. Nothing changes. A US lawyer, Charles Curtis, said a lawyer’s function is “to lie for his client … He is required to make statements as well as arguments which he does not believe in”.

    A prudent legal system thus keeps lawyers on the tightest of leashes. The legal system used in England and its former colonies is not prudent: it even allows lawyers to control evidence, and judges are not trained as judges: they are lawyers trained in sophistry one day and judges the next.

    The public thus cannot know whether judges’ rulings and opinions are based on fairness or on sophistry for some other reason.

    That leads to alienation, but judges believe no one can stop them resorting to sophistry, if they want to. US Chief “Justice” (1969-86) Warren Burger (1907-95) told John Marshall Harlin II: “We are the Supreme Court and we can do what we want.”

    It would thus be useful if a legal analyst explained in simple terms the sophistry used in Bush v Gore (US Supreme Court, Monday, December 13, 2000). Five judges came up with a form of words which effectively said that democracy means you don’t count all the votes.

    They were William Hubbs Rehnquist (1924-2006, judge 1972-2006), Sandra Day O’Connor (b. 1930, judge 1981-2006), Antonin Scalia (b. 1936, judge 1986-), Anthony Kennedy (b. 1936, judge 1988-), and Clarence Thomas (b. 1948, judge 1991-).

    A dissenter, John Paul Stevens (b. 1920, judge 1975-2010) elaborated the obvious. He said: “Although we may never know the winner, the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

    Research a year later showed that Albert Gore would have been President rather than George W. Bush, if all the votes had been counted. I hope someone has kept score on the cost in blood and money of that bit of sophistry. In Iraq alone, the cost was hundreds of thousands of lives and some $700 billion. [I think the actual cost was more like a trillion.]

    Citizens on sophistry watch will have their own lists of suspected sophistry …

    A man wrote in to say that on Tuesday, March 4th 2008 Supreme Court Associate Justice Antonin Scalia spoke at the University of Central Missouri in Warrensburg.

    Scalia: “I don’t mean to suggest that in the bad old days judges never distorted the Constitution. Of course they did. You’re going to have willful judges with you until the end of time. But in the good old days they had to distort the Constitution the good old fashioned honest way. They lied about it.”

    (nervous laughter)

    Perhaps we should change Joel Siegel’s joke to: It’s only the 99% of judges who give the rest a bad name.

    Best,

    Evan

  5. Judicial sophistry or on the art of lying « Victims Unite! Says:

    [...] a Victim [except Rich Criminals] now writes more about judges and sophistry, their art of lying, on this post’s excellent book review and associated [...]


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