AUTHORS NOTE: "The following observations were developed steadily from early in 2002, but have not been updated since 17/9/2003. Mrs Angela Cannings was acquitted in December 2003 which essentially concludes this particular analysis. While Lord Justice Judge admitted at this acquittal that there are problems about cases involving certain medical expert witnesses, there is still no acknowledgement that the underlying court process itself might be faulty. To that extent it is only a modest step forward and since it is only lawyers of the same kind of mind-set reviewing related cases, even that might come to nothing much at all. The reluctance of the courts to blame their own processes suggests the only true step forward would be if an independent investigation were made obligatory for every case where someone is found guilty "beyond reasonable doubt" and then later acknowledged to be innocent. Without that nothing really changes and unnecessary miscarriages of justice will continue. As the following observations show, Michael Shirley's faulty conviction has many features in common with Mrs Cannings' and this highlights that the identified failings of expert evidence are merely an emanation of more deep-seated problems." Frank Ward.
Justice Without Science Isn't Justice.
(Version 17/9/2003)
When mathematicians or similar
scientists say something is proven, there is no doubt it is so. The requirement is
that it is always so found. When a court delivers a guilty verdict, there is often
no such certainty, even though the language used often implies there is. The purpose
of this article is to encourage further research into establishing why innocent people
are on occasions found guilty and how widespread the problem might be.
My personal
interest in the subject was first aroused with the Lindy Chamberlain case in Australia.
The injustice, suspected by many people at the time, was only corrected by the courts
on a chance finding of minor evidence several years later. While she was compensated
financially, there was never any mention in the press of an investigation into how
the initial erroneous verdict occurred. That seems a strangely cavalier attitude,
since the justice system's prime purpose is to protect people from the wrong-doing
of others and when someone is wrongly convicted, the system is violating its own
charter. From a scientific viewpoint therefore, if not a legal one, the causes of
such errors deserve a very public exploration.
I have little knowledge of legal matters
and it may therefore be considered presumptuous to speak out on such things. On the
other hand, failures in the justice system could affect any one of us and as an actuary
and an analyst, I can claim some knowledge that is relevant to the matter. The science
of chance and probability is at the heart of actuarial science and clearly it should
feature much in weighing up judicial evidence.
A much more recent civil case, involving
the Equitable Life Office in Britain, made me realise that the Lindy Chamberlain
saga was not perhaps a one-off, exceptional mistake. Law Lords, at the peak of their
profession, allowed a wealth of factual evidence to be overridden by claims that
in scientific terms were mere hypothesis and then compounded their error by making
decisions that lacked consistency, a most important requirement of scientific logic
(see Appendix 1).
This has greatly increased my concern about the quality of legal
methodology and its apparent failure to embrace quite rudimentary scientific processes.
So, naturally, I have been taking more interest in legal decisions that are reported
in the press. Two other cases involving mothers charged with murdering their babies
soon came to light. Some details of the first one are given in Appendix 2. While
the judge at sentencing showed some concern for Mrs Angela Cannings by suggesting
she must be ill, her honour naively fails to grasp that she is responsible for the
apparently foolish verdict. Clearly a jury of butchers, bakers and candle-stick makers
needs a lot of advice about what "beyond reasonable doubt" means, about the widely
differing values to be given to factual and speculative evidence, about the bias
inherent in expert witnesses chosen for their viewpoint, about the science of chance,
about the need for consistency in all the evidence and about the greater seriousness
of convicting an innocent person compared with acquitting a guilty one.
With practically
everyone saying how pleasant and helpful the defendant was, I wonder how the jury
in finding her guilty explained why such a talented actress is working as a supermarket
assistant. It might hint at yet another bias in the legal process, with imaginative
circumstantial evidence commonly being used against a defendant, but rarely to support
them. It is also hard to understand how the jury could ignore the fact that Prof.
Jean Golding was first called as a prosecution expert witness but on seeing the pre-trial
evidence became a witness for the defence instead. She also negated the evidence
of Sir Roy Meadow. This leads to another issue that is scientifically unsound and
I think is legally unethical. Sir Roy lectures judges on how to interpret medical
evidence and then gives evidence before judges in particular cases. This could well
be a contributory factor in the judge's handling of this case.
There is a quirk of
the legal system that introduces very definite bias against good people demonstrated
in this case. If perchance this mother had been tried and convicted of murdering
her first born back in 1989, legal practice would have required that event to be
kept hidden from this jury. With no such black mark against her, the prosecution
is allowed to make specific mention of that first child's death and use it as leverage,
despite the pre-trial hearing finding that there was no case to answer in respect
of that first death.
Thanks to the Internet, it is now easy to find related information
and I soon found another report that provides a ray of enlightened sunshine that
fellow actuaries and similar scientists will appreciate. It is a follow up to another
case a few years ago where another mother, Mrs Sally Clark, was similarly convicted
for losing two babies in undetermined circumstances (see Appendix 3A).
In the case
of Mrs Clark, without knowing the jurors' deliberations, the judges at her first
appeal were willing to say the acknowledged major statistical mistake in prosecution
evidence wouldn't have changed the original jurors' opinion. The original verdict
was in fact a 10-2 split which makes the appeal judges decision even more reckless.
Nor does their decision, or even the original verdict, sit comfortably with the fact
that the defendant was offered a lesser charge of manslaughter avoiding any prison
term (which she refused), showing the prosecution wasn't wholeheartedly behind the
charge of murder. Mr Stephen Clark, the defendant's husband, said the appeal judges
had been "intellectually dishonest" and although Mr Clark is certainly not an independent
party to the proceedings, any fair minded person would have to agree that is an accurate
assessment. A selection of the judges' arguments is examined in Appendix 3B.
These
and a few other cases I've explored highlight several prominent problems from a scientific
viewpoint. The first is judges don't appear to appreciate the extra seriousness of
convicting an innocent person (see Appendix 4). The second is the misleading nature
of evidence from "expert witnesses" who have been selected by the prosecution and
the defence (see Appendix 5). The third is the failure to distinguish clearly fact
from opinion and hypothesis. Disturbingly, judge's opinions are also often relayed
as fact (see Appendix 6 for some illustrations).
Such errors are then compounded by
several unsound legal procedures that have crept into the legal system over the centuries,
some introducing deliberate bias. These include jury selection, exclusion of evidence
and the double-jeopardy rule. These are explored in more detail in Appendix 7.
The
Equitable Life Office case mentioned earlier also illustrates a quite different aspect
of court practice that is scientifically questionable - that the outcome is forced
into being black or white. There were three court hearings, one found for the claimants,
one found for the defendants and one found for the claimants in a 2-1 majority verdict.
That is more like roulette than a just conclusion. Sadly, as Appendix 1 shows, in
this particular case the verdict had no correlation with the evidence and of course
a wrong decision is even worse than an arbitrary one.
The case of Mrs Sally Clark
has just been reheard (29/1/2003) in a specially allowed second appeal and she has
been exonerated. The justification was that evidence given by a second expert witness
for the prosecution was shown to be faulty. It has taken the court system three years
to come to the conclusion that practically everyone else acquainted with the case
"knew" almost from the start. The defendant, her husband and colleagues had to prove
her innocence by tracking down this error themselves. While Sally Clark was innocent
until found guilty, the opposite also applied, so a shadow is thrown on yet another
maxim of the law. It also highlights the inequity of pitting the resources of the
state against the resources of the individual. However, putting the sole blame, or
even the main blame, on the erroneous evidence is a very superficial analysis of
the errors in this case.
Sally Clark would have been JUST AS INNOCENT if this faulty
evidence hadn't been tracked down or if in fact the test it referred to had never
been made. The real problem is clearly much deeper than these individual pieces of
evidence. It is the same faults that appear in all the cases I've referred to, convicting
someone when all the evidence was not CONSISTENT and then giving undue weight to
selected information. Science requires evidence to be consistent to prove a proposition
and however wise judges are they cannot ignore that. The scenario in the Sally Clark
case is this. We know Sally & her husband were an apparently normal, law-abiding
couple, we know it is the combative role, or at least the practice, of the prosecution
to put a sinister connotation on the innocuous day-to-day events that happen to us
all, we know the particular prosecution expert evidence was chosen to support their
case and so involved deliberate bias and not being expert themselves, the judge and
jury don't know how significant that bias was. That the judge and jury should let
the unknown part overwhelm the known part, highlights the speciousness of the process.
The same thing happened in the Chamberlain case, the Equitable Life Office case and
Mrs Cannings case. Is it possible this error occurs in every case?
Mrs Angela Cannings
has languished in gaol well over a year but at last an appeal has been scheduled
for November 2003. The inconsistency of the evidence in her case is perhaps even
more self-evident than Sally Clark's as Appendix 2 shows. Judges need to be more
than just umpires of court procedure to ensure justice is done. In Sally Clark's
case twice justice wasn't done and the judge's failure to highlight the inconsistencies
in Mrs Cannings case has surely contributed to the unreasonable verdict.
This is quite
an incredible indictment of the legal process. So much of what they claim in words
and maxims is not born out in fact and the wisdom of the judiciary is questioned
even more by their failure to react to such occurrences as to the occurrences themselves.
There
is yet another case I have looked at briefly, involving a Mr Derek Christian, that
appears riddled with inconsistent evidence. It also highlights again that customary
habit for a prosecution to search out quite innocuous actions and put a sinister
twist on them, just as was done in Mrs Cannings' and Mrs Clark's cases. Such drama,
rather than cool analysis, cannot be expected to help bring out an intelligent decision
from a jury. It is clearly a tactic aimed at capturing the minds of the jurors rather
than informing them. Nor is it fair between educated, quick-witted people and those
uncomfortable with erudite dissertations in an unusual and archaic environment.
Another
questionable situation is that Sally Clark, prior to being charged with murder, was
offered the lesser charge of manslaughter which would not have warranted a prison
term. Now either she was suspected of murder or she wasn't, so what explanation is
there for the prosecution to introduce bargaining. There is no scientific honesty
in that type of manoeuvre. Arm-twisting and other bullying tactics are completely
unbecoming a serious attempt at revealing the truth. It suggests the judicial system
is not transparently honest and plea bargaining is yet another biased tactic that
assists the truly guilty but does nothing for the innocent.
A small chance find gave
both Lindy Chamberlain and Sally Clark back their innocence. Surely there must be
at least one wise judge that recognises that justice by such a tenuous thread is
not satisfactory and that something is seriously wrong when ordinary people reading
news reports can see things more clearly than the courts. This latter situation could
be partly explained by a failure within a court environment to see the forest for
the trees and as a result giving undue weight to selective minutiae in the evidence,
by being influenced more by manner than substance.
There is also the problem of the
human mind being suspicious without due cause. It is recognised in Darwinism that
this is a healthy trait and helps with survival and most animals exhibit the tendency
- even cool-headed scientists. A recent case of alleged cheating in the "Who Wants
To Be A Millionaire" program highlights the situation. The fallacy in the human mind
arises because it does not distinguish between the significance of evidence coming
before the suspicion and vice versa. If you tell me you are going to toss a coin
six times in succession and each time it will come down heads and then you do it,
I would be suspicious of the coin or your technique, since everything being fair,
it should only happen once in sixty-four times. If however you told me you had just
had six heads in a row, I'd be foolish to jump to such a conclusion. Many people
are tossing coins all round the world. One in sixty-four of those would give six
heads in a row and why shouldn't you be one of them? Practically all cases of circumstantial
evidence involve the suspicion preceding the evidence and therefore are liable to
this error. The current justice system fails because it UNDERVALUES the very real
importance of all the evidence being consistent to establish guilt and OVERVALUES
apparent coincidence in circumstantial evidence.
While the independence of the judiciary
is a jealously guarded right, it should be limited to independence from government,
not independence from the God-given rules of science.
While I have concentrated on
two particular and similar cases, the validity of the arguments I have made apply
to many others. Just recently (July 2003), Michael Shirley was found innocent of
a murder for which he had spent sixteen years in prison. Appendix 8 gives more details
and shows once again the slack way circumstantial evidence is evaluated and the medieval
nature of judicial practices.
The police force and medical professionals embrace scientific
advance with great success and there is no justification for the judiciary to remain
aloof and resist change by brazenly claiming their methods have served us well for
centuries. Quite clearly they haven't and it is time to trade in their creaking charabanc
for a more reliable vehicle.
No modern day thesis is complete without a dabble in
the realm of conspiracy theory. As light relief, Appendix 9 explores just that and
with more seriousness suggests the kinds of improvements most needed by the judicial
system.
The science-based failings identified in this article are summarised in Appendix
10. Some articles by other authors have been collected together as Extra Appendices
and are available on request, but these can also be accessed via the Internet at
the time of writing.
I welcome any criticism of this treatise and any further ideas
for it. My sole personal interest in anything referred to is just the Christian ethic
of caring about one's fellows.
Frank Ward (fcamward@scs.brisnet.org.au)
www.slimeylimeyjustice.org
