David Farrar’s Thursday post on Clayton Weatherston’s trial for killing Sophie Elliott had triggered over 130 comments when I last looked.
The post and string are to me the epitome of good blogging. I learned something I did not know from David’s post. The comments are diverse, vigorous, and frequently informative. Few of the trolls emerge. F E Smith in particular admirably puts the case for his reviled branch of my profession, defence counsel.
And it is a debate among strangers that is simply not available in MSM. It may be as close as we can get to the vision of those who died to secure free speech, an ‘agora’ or marketplace of ideas where understanding emerges from unconstrained contention.
Of course many of the commentators are anxious about how far their discussion can go before attracting a jealous court’s punishment for contempt. Without knowing where the line is drawn, or quite why, they know that freedom of speech stops at the court door. The court anointed will decide what can be said about matters reserved to them.
F E Smith challenges some of his critics to say how they would remedy what is wrong with the criminal justice system. He is not necessarily defending it other than implicitly with the argument that it may be the best we can do. But it is fair to ask more of critics than complaint.
Here are a few suggestions:
a) Restore genuine committment to the whole truth and nothing but the truth. When judges exclude evidence to punish Police for breaking the rules in the way they gather it, or because they do not trust juries with it they are showing what they really think of that witness oath. It becomes an Orwellian line.
b) Remember who the real clients are – the victims entitled to justice since the state removed their right to personal vengeance, and the next victims, entitled to expect the law to deter and to incapacitate evil people. So – do what commercial lawyers, and doctors, and other service professionals do – put the clients first. If that means missing morning tea, or carrying on till midnight with a hearing, or sorting out the legal arguments in chambers before empanelling the jury and getting everyone else to court, then do it.
c) Show some shame for where you’ve taken our justice, in my working lifetime from one of the lowest violent crime rate countries to one of the highest in the western world. From typical defended trials lasting a day or two and invariably being over from arrest to sentencing within 6 months, to median times from committal (often up to 6 months after arrest) to trial being as long as a year, with months further for sentencing.
d) Ask yourselves how you can be complicit in a case where the killer was caught literally red-handed, where the only question is his excuse, and that excuse is now being heard by way of attack on the dead girls character after he’s been given a year and a half of comfortable protection in which to rehearse his memories, and refine his venom. It should all have been over within a month.
e) Ask why you are allowing trials to spend weeks on conceptual distinctions for which the original purpose has vanished with the death penalty. The arcane differences between mad or bad should have gone with it. In both cases the killer should know that he will be locked up for the rest of his life. Why worry about whether he lost control of himself. The law deals simply and vigourously with other excuses that if permitted, would undermine the law. For example though it is genuine, not knowing the law is simply not a relevant excuse, lest it become the excuse of every offender.
d) Cut spurious appeals – against sentence, and generally. They’re costless one way bets. Change that by adding to the sentences of those where it is an expensive try-on.
e) Punish lack of remorse in defence tactics, and not guilty pleas. If Weatherston is convicted the judge should send a message to every potential exploiter of the system’s proper concern to permit people to defend their actions, that a false defence is nevertheless costly. It should add at least 10 years to his non-parole period.
f) End the trial as a game and re-focus the rules on getting to the truth, so out with the so-called right to silence. A judge and jury should place whatever weight is merited on the failure of the person best placed to know what actually happened, to expose himself to examination.
g) End the pantomime care about what juries can and can’t hear. Recognise that the internet has finished the idea of jury minds as empty buckets to be filled from a hose controlled by the judge. So stop transferring trials.
h) Restore truth in sentencing. When judges sentence it is the non-parole period that is the real sentence. The rest is just potential punishment for not playing the game in prison.
I ask that you make the law mean what it says.
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Once again Stephen puts what I strongly feel eloquently and well. My admiration for his elegant prose contrasts with my frustration and dissatisfaction with a justice system that seems more concerned with its own pomposity than either the victim or the truth of the matter at hand.
Damnit we have a right to protection from those who would do us harm. There is a huge cost to giving those who would toy with the system at our expense to their advantage, always knowing that the worst that can happen is that they would be only marginally worse off whereas they may yet succeed in conning a gullable jury yet again and escape scot free. We can, and must, do better!