SCIENCE AND JUSTICE APPENDICES
Appendix 1 - Equitable Life Office.
Equitable Life Assurance v. Certain Policyholders
The
complainants were policyholders that had guaranteed annuity rate options exercisable
at maturity (abbreviated G-holders below). They were claiming they were entitled
to the identical bonuses as those policyholders without the guarantee. A summary
of the case can be found in "Actuary Australia March 2001 Page 12" , a magazine of
the Institute of Actuaries of Australia. The following is a precis of the most significant
parts of letters from me published in "Actuary Australia" and in "The Actuary" (a
UK publication) in subsequent months.
Somewhat dubiously, the judges chose to let
assessments of claimed expectations override clear contractual statements. Surprisingly,
they also made monetary decisions without considering where the money comes from
and the impact this has on other innocent parties (The Equitable is a mutual life
office totally owned by the policyholders alone). But most amazingly, although they
gave case-deciding weight to the expectations of the complainants, they paid no heed
at all to the expectations of all the other policyholders. Scientists know that an
inconsistency is God's way of saying a conclusion is invalid and I'm sure he applies
the same rules to judge's conclusions.
Here's a list of salient questions with what
I believe are nigh indisputable answers.
1. Should non-G-holders contribute to a benefit
they can't receive? No.
2. Should guaranteeing an annuity rate be considered to be
guaranteeing the bonus too? No.
3. Should a judgment be made looking at just one aspect
of the situation, ignoring both where the money comes from and the interests of the
other policy holders? No.
4. What bonus can a policy holder claim to expect? Something
hopefully, but nothing specifically, other than the same as any other identically
placed policyholder.
5. Has any one of the G-holders claimed they were misled by anyone
in particular, intentionally or otherwise? I don't believe so.
6. Is the purpose of
a bonus to return to the policyholder any excess earnings from his contributions
after meeting the contractual entitlements of his contract? Yes.
7. Should an unsubstantiable
a posteriori claim "that the G-holders expected to get the same bonus as non-G-holders"
be more significant than the substantive contractual statement "that the directors
have absolute discretion in deciding each policy's allocation of bonus"? No.
8. Even
if there were an adjudged wrong, does it make sense to give a decision that creates
an even more definite wrong? No.
Answers to all the above questions are clearly opposite
to the judgment made. Try as I can, I cannot think of any salient question that would
favour the judgment.
There was no contradiction of any consequence from other writers
in response to the points made above. For another, INDEPENDENT assessment, see www.cookham.com/
community/equitable/billdavies.htm (or Extra Appendix D).
It is quite a good summary, though I don't see the evidence to attribute any fault
to the Equitable managers. I do question one sentence it includes, namely "The Lords
made a serious mistake in not considering more than the narrow legality of the case".
While scientific logic is both definable and testable, the concept of legal logic
has no such qualities. It has fictitious precision and in this instance is merely
opinionated interpretation where the judges deem there is an IMPLIED condition and
let it override an unquestionable right. We all know cases where judges have done
just the opposite and used minor factual details to thwart the intention of a law.
The
mathematical concept of "reductio ad absurdum" is a very powerful tool for exposing
faulty logic. If all the Equitable policy holders had been G-holders it is clear
how much bonus could be allotted to them. Why then should they get more bonus because
there are other different policy holders as well?
Appendix 2 - Mother Accused of Murdering Her Babies.
The following is an abridged
version, for space reasons, of a report that can be viewed in full at news.telegraph.co.uk
for 17/4/2002. While the prosecutors in this case haven't been as inventive as those
in the Lindy Chamberlain one, there is much similarity, with a noticeable lack of
credit being given to the wholesome good character of the defendant.
Experts have
no idea why a doting mother would kill her babies. By Stewart Payne (Filed: 17/04/2002)
AS
Angela Cannings began a life sentence for the murder of her two sons last night,
police and welfare experts admitted that they were no nearer discovering why she
killed them.
No motive for the killings was offered during the six-week trial of Cannings,
who was said to be a doting mother.
The jury listened to complex and conflicting evidence
from dozens of expert witnesses. The prosecution argued that she had suffocated seven-week-old
Jason in 1991 and 18-week-old Matthew in 1999, while the defence put forward several
alternative possibilities, ranging from cot death to accidental chemical poisoning.
Their
first-born child, Gemma, also died, aged 12 weeks, in 1989. Cannings was charged
with her murder too but the charge was dropped before the trial. Paul Dunkels, QC,
told the jury to regard Gemma's death as the "backdrop" to the case.
It was not disputed
in court that all who knew Cannings, including health visitors, believed her to be
a good mother.
Det Sgt Rob Findlay, who interviewed Cannings, said: "There was nothing
in her behaviour which aroused suspicion. She was nice and helpful and, as was said
in court, she was a caring mother, which makes it more difficult to understand."
©
Copyright of Telegraph Group Limited 2002.
Appendix 3A - Criticism of Expert Evidence Given by a Prosecution Witness Against
Another Mother Accused of Murdering Her Babies.
'Statistical error' in child murder
trial By Celia Hall (news.telegraph.co.uk for 31 December 1999)
THE conviction of
a solicitor for the murder of her two infant sons is unsafe because of an error in
statistics given in evidence and a lack of understanding of probability theory, a
doctor claims today.
Dr Stephen Watkins, a public health expert, says guidelines are
urgently needed for judges in criminal cases when probability theory forms part of
the evidence. Sally Clark was found guilty in November of smothering her sons Christopher,
11 weeks, and Harry, eight weeks, a year later.
An expert witness for the prosecution
said the chance of a double cot death in her family was one in 73 million. The witness
said the chance was "vanishingly small". This evidence may have played a significant
part in the outcome of the case. Clark, from Wilmslow, Cheshire, was found guilty
of double murder in a 10 to two verdict. She protests her innocence and plans an
appeal.
Dr Watkins, director of Public Health at Stockport Health Authority, writes
in the British Medical Journal: "It is speculation whether Sally Clark would have
been acquitted without this evidence. But with this mathematical error prominent,
the conviction is unsafe." He argues that the real chance of a double cot death in
a family is one in 8,500 but says that even this figure is meaningless.
Dr Watkins
said yesterday: "If statistics like this continue to be used in criminal cases, miscarriages
of justice will occur and this may have been one. I can say that this particular
evidence was wrong." Dr Watkins said understanding and interpreting statistics was
an essential part of his job as a director of public health. He said: "This case
concerned me particularly. We do not even fully understand cot deaths."
He says in
the journal that from whole population data it has been calculated that the square
of the population risk of cot death is one in 2.75 million. He said: "There are 378,000
second or subsequent births each year in England. So if cot deaths are random events
two cot deaths will occur in the same family somewhere in England once every seven
years."
But cot deaths were not random events since there have been several studies
of recurrence. The studies put recurrence rates of cot death at about five times
the general rate of cot death, "implying recurrence somewhere in England about once
every year and a half. Two studies have shown higher rates. He said: "The fact that
studies of recurrence rates have been done means that this event is not vanishingly
rare."
He says that in the Clark case the prosecution used the figure of one in 73
million rather than one in 2.75 million because of the family's affluence. But he
argues that individuals do not necessarily have the attributes of their social group.
He said: "The basic principles [of probability theory] are not difficult to understand
and judges could be trained to recognise and rule out the kind of misunderstanding
that arose in this case. Never again must mathematical error be allowed to conflict
with mathematical fact as if each were a legitimate expert view."
Dr Watkins says
medical evidence is trusted in court, a situation that must be retained. He said:
"It is possible to be an extremely good doctor without being numerate and not every
eminent physician is best placed to give epidemiological evidence. When errors occur
we expect them to be admitted, learned from and corrected. Expert witnesses can hold
a substantial part of defendants' lives in their hands. Defendants deserve the same
protection as patients."
Copyright of Telegraph Group Limited 1999.
If judges' analysis
of cases matched the scientific clarity of this one by Dr Watkins, there is good
reason to believe there would be far fewer miscarriages of justice.
Appendix 3B - The First Appeal for Mrs Sally Clark .
I recommend you read the whole
transcript of the judges findings (available in Extra Appendices, on request) to
appreciate how pervasive their bias is, but I will examine here the points they stated
particularly indicated guilt.
(1) The first was Mr Clark's mis-stating the time he
got home on the night Harry died. They labelled this "of the greatest significance"
(see para 13 of Extra Appendix B). Compare this finding with the judges attitude
to the fact that Dr Williams twice changed his opinion on the children's cause of
death (see paras 3, 11 & 26). You might say the difference is one of motive. As the
article by Dr Theodore Dalrymple (Extra Appendix C) clearly shows there is significant
motive for expert witnesses to please their employing counsel. What is more Mr Clark
would only have a misleading motive if he thought the defendant were guilty, whereas
Dr Williams has such a motive in ALL circumstances. That significance is one that
scientific analysis measures but the undisciplined human mind so readily overlooks.
(2)
Suspicion of foul play is considered because of an old fracture of the second rib
(Para 8 of Extra Appendix B), yet at the same time suspicion of foul play is considered
because both boys were "healthy" when they died (Paras 2, 12, 34 & 43). This type
of double standard, where it is impossible for the defendant to get credit whether
the children are sick or well, also highlights the "intellectual dishonesty" of the
appeal judges as well as the quality of the original trial judgment.
(3) This is the
transcript of Para 255 of the appeal judges' findings.
255. Taken separately there
was a very strong case on each count. Taken together we conclude that the evidence
was overwhelming having regard to the identified similarities:
a) the babies died
at the same age;
b) they were both found by the appellant and both, according to one
version of the appellant, in a bouncy chair;
c) they were found dead at almost exactly
the same time of evening, having been well, having taken a feed successfully and
at a time when the appellant admitted tiredness in coping;
d) on each occasion the
appellant was alone with the baby when it was found lifeless;
e) on each occasion
the appellant's husband was away from home, or about to go away from home;
f) in each
case there was evidence of previous abuse: for Christopher an attempted smothering;
for Harry an old rib fracture;
g) in each case there was evidence of deliberate injury
recently inflicted: for Christopher bruising and a torn frenulum; for Harry hypoxic
damage, petechial haemorrhages in the eyelid and fresh bleedings of the spine and
swelling of the spinal cord;
h) the rarity of two natural deaths in one family with
the first five features above present, and the extraordinary coincidence, if both
deaths were natural, of finding evidence of old and recent abuse."
This para 255 is
so full of statistical howlers about coincidence that it discredits the whole idea
of allowing judges to be recruited from the Humanities with no concept of elementary
Science. Any scientist making these statements would be laughed out of court - well,
out of the lab.
Item (a). One child was 11 weeks old and the other 8 weeks when they
died. Alright that's near enough the same age. The obvious question to expose the
fallacy, is what difference in age is necessary to support innocence rather than
guilt and just why? Indeed, it isn't clear to me why the similar age doesn't suggest
more a common problem in the children's physical development rather than a common
mental problem of the mother. One causal interpretation is ignored, whereas the other,
more conjectural one, is readily interpreted as guilt.
Item (b). Well I'm a typical
family man and if anything had happened to my children when young, it is statistically
nigh certain my wife would have been first on the scene. Not satisfied with conjuring
up guilt from this, they largely repeat the same point as Item (d).
Item (c). Well
the appellant feeling tired I suppose has some negative connotations, but does feeling
tired really add great weight to the idea that she killed her babies. It equates
to saying every mother is a potential killer on that score. The similarity in time
of course has little statistical significance since it has only been considered after
the event. Babies are often fed at regular times, yet the judges want to add a sinister
connotation to this in addition to the time being the same. Such multiple counting
of the same point is a common indication of trying to make the evidence fit a pre-conceived
conclusion.
Item (d). This old chestnut is always raising its ugly head. Aren't there
enormous amounts of time when mothers are alone with their babies? If something happens
when they are not, it can help in their defence, but the number of babies that any
mother would need to have die, without anyone else being present when they find it
so, for it to be statistically unexpected is a lot more than two.
Item (e). This statement
is only marginally different from saying one time he was home and the other time
he wasn't. Now you don't have to be a scientist to appreciate the blatant dishonesty
in suggesting that confirms anything at all.
Item (f). Dr Williams first found Christopher
had died of a respiratory tract infection and only changed his opinion to smothering
a year later, after Harry had also died. Dr Williams then identified an old rib fracture
in Harry that should have caused him trauma and discomfort. The parents claimed no
knowledge of this and no one else, health workers included, had any knowledge of
such distress either. The judges saw only one conclusion, the parents were hiding
something even though Professor Berry said that the fracture of the rib had not been
confirmed (Para 76). The judges even make up their own time for this fracture (compare
Paras 243 & 250 and Dr Williams statement in Para 61). The way circumstantial evidence
is selectively viewed like this is at heart of many of the judiciary's mistakes.
Item
(g). There is a wealth of technical medical evidence and the most consistent thing
about it is that the experts agree on very little. Dr Williams (who changes his mind)
and Sir Roy Meadow (who uses misleading statistics) are the only two who are willing
to talk in certainties. Are the judges who have made such errors in simpler matters
fit to come to conclusions that the medical experts themselves cannot?
Item (h). The
jump from unknown cause of death to not natural death is clearly another deliberate
act of bias by the judges. The value of the rest of this paragraph needs no further
comment.
(See Extra Appendix A or www.jspubs.com/Experts, Sally Clark paragraph headed
"Appeal" for more, independent information)
Appendix 4 - Seriousness of Convicting an Innocent Person.
Not only do the examples
I've given show how readily opinion and circumstantial evidence is allowed to outrank
fact, but they also show a failure to appreciate the greater significance of convicting
an innocent person versus failing to convict a guilty one. The much vaunted phrase
"beyond reasonable doubt" requires a thorough scientific definition. In the cases
examined in this article, it appears to encourage the jurors to jump to a conclusion
rather than be absolutely sure of the defendant's guilt. To be consistent with the
other tenet of justice that "everyone is considered innocent until proven guilty",
it should be "beyond any doubt". Where all the evidence is circumstantial and speculative,
a more consistent directive would be "if there is a clear possibility that the accused
is innocent, that should be the verdict". From a scientific viewpoint unless ALL
the evidence is consistent with guilt, the case is not proved. Consistency is a very
fundamental requirement in scientific proof. It would be insincere to argue that
this would allow the guilty to escape justice, since, as shown in various places
through this article, the present system already includes several cases of bias and
every one acts AGAINST "good" people.
Appendix 5 - Expert Witnesses.
Consistent with the combative nature of the courtroom
process, expert witnesses are chosen by the prosecutor and the defendant and deliberately
selected to support the viewpoint required. The scientific effect of this is that
they are drawn from the extremes of their expertise and are inclined not to be representative
of the main body of such experts. In mathematical statistics, it is the tails of
a distribution that are the first to be discounted and it would be false to think
a useful interpolated value could be obtained from the two extremes. For those not
comfortable with scientific terminology, it means that, like in newspaper reporting,
an over exposure is given to more extremely opinionated people, or in streetwise
banter, cranks! Selectively chosen expert witnesses seem to have been prominent in
almost all the cases I've referred to. Scientifically the lack of independence in
their selection requires the factual value of their testimony as experts to be much
downvalued. I think there is probably good evidence to show that it takes a scientist
to detect rogue science and judges need to expand this aspect of their knowledge
to advise the jury capably about the weight to be applied to such evidence.
Sir Roy
Meadow who gave the faulty statistical evidence at Sally Clark's trial also gave
evidence against Mrs Cannings and more recently (May 2003) against a Mrs Patel. This
habit of just a few members of a profession regularly acting as expert witnesses
is another indication that such evidence is not truly representative and not broadly
based. Indeed there seems to be a dangerously close relationship between prosecutors
and their regular expert witnesses and in Sir Roy Meadow's case this close relationship
extended to his lecturing judges on his opinions. The danger is particularly blatant
in Sir Roy's case because he likes to use the catch phrases "One sudden infant death
is a tragedy, two is suspicious and three is murder unless proved otherwise." and
"There is no evidence that cot deaths run in families, but there is plenty of evidence
that child abuse does". That immediately identifies him as a pseudo scientist and
as we saw in Appendix 3A, there is some evidence that cot deaths do run in families.
I
recall an expert - a surveyor I believe - once claiming that the system was faulty
because unless you gave the evidence required you were never called as an expert
witness again. The criticism of the system was quashed by a judge in a condescending
manner claiming he found the system worked satisfactorily and offering no evidence
to substantiate that opinion. For a profession that proclaims the importance of proof,
it is surprisingly reticent to debate, let alone prove, the merits of its own practices.
A
very recent article, "Expert witnesses aren't what they seem - and I should know"
by Dr Theodore Dalrymple (Filed: 02/02/2003) Daily Telegraph, contains more information
on the subject. It is reproduced as Extra Appendix C.
Appendix 6 - Opinion and Fact Not Clearly Distinguished.
Firstly, here are a couple
of trivial illustrations to show how pervasive the problem is.
A recent example of
a judge being swayed more by opinion than scientific reason was the case of two people
imprisoned for disobeying a court order not to cut down a hedge (reported in various
UK newspapers 3/8/2002). A neighbour had obtained the temporary order on the basis
that he thought some part of it might have been on his land. Assuming the law's purpose
is to protect citizens from wrongdoing and to be their servant not their master,
the coolheaded reasoned approach would have been to wait and see if any part of the
hedge was on the neighbour's land. Then a factual rather than opinionated decision
of wrongdoing could be made.
On 28th February 2001, there was a traffic accident when
a car driver named Gary Hart lost control of his car and trailer and the final consequence
was several people killed in a train crash. The main evidence against him at his
trial in December 2001 was that he hadn't had much sleep the night before, which
he had acknowledged right from the start and never tried to conceal. The judge castigated
the driver for not admitting he fell asleep, without any qualification that this
must be just an opinion, and without acknowledging that what followed showed that
the driver must have recovered alertness very quickly. He was found guilty by a majority
verdict and I am not questioning the verdict, but the judge's immodest behaviour.
The judge then castigated him again because a stress counsellor reported the defendant
was shocked and angry at the verdict. He then sentenced him to five years in jail.
Now every driver could say that there but for the grace of God go I. There was no
suggestion of evil intent, but the judge then insisted the driver was solely responsible
for the full catastrophe, despite the string of chance happenings that led to it.
There is a strong indication that with a less opinionated judge, the defendant could
have received a more minimal penalty, especially with the split verdict. Such chance
outcome is because judges are not required to be scientific in their analysis. Now
if the law says intent has little bearing on the matter and you are responsible for
the full outcome of your mistakes, then to be consistent, there is a case against
the professional road designer who failed to provide a barrier at this clearly dangerous
spot (a barrier started further along) and against the railway safety officials who
failed to do something similar at the railway tracks and even against the railway
designers who created closely aligned rail tracks for opposing trains to rush past
each other at incredible speeds, which is what finally caused the fatalities some
considerable way from the original incident. A more realistic measure of the driver's
guilt to society would be his driving record, not a one-off chance outcome. This
suggests the justice system has difficulty differentiating between malevolent acts
and adjudged carelessness, the same way it does between fact and opinion.
Recently
there have been quite a few lawyers stating that the double-jeopardy rule has served
us well for over 800 years but they don't actually explain what evidence supports
that statement. This too indicates a distinct lack of training in scientific thinking
within the legal profession - since the last thing a scientist would do is portray
an immeasurable opinion as a fact.
There is no surety that anyone found guilty on
indefinite evidence is in fact guilty. The use of DNA testing has been a recent source
for highlighting that past "opinion-based" judgments and poor legal methodology leave
something to be desired. That is probably a classic British understatement. The more
prominent reports of this I've seen to date seem to be American and that is probably
due to their greater openness in these matters (for example, Los Angeles Times 18SEP2002
"Illinois ..." and Prof. Barry Scheck's testimony to the USA Senate, www.criminaljustice.org/public.nsf/testimony/2000jun13?OpenDocument).
Collecting together information on this, showing how many pre-DNA cases have retained
suitable DNA material, how many have had it tested and what proportion of them contradict
the original verdict, could be a good preliminary indication of how often verdicts
are wrong. Terry Gilbert, an American defense attorney, has estimated that 5% of
all convicted felons in the United States are innocent (that is 100,000 people).
Since many court cases would involve clearcut factual evidence, the error rate for
cases involving only circumstantial evidence must be much higher. What is more, a
higher standard of "proof" is required in criminal law than civil law, so perhaps
we shouldn't be surprised at the nonsense outcome in the Equitable Life Office case.
Even
admission of guilt is not definite evidence. There is a particularly sinister practice
at the prison stage of pressuring prisoners to admit guilt to get early release.
It could be seen as a desperate attempt to add credibility to the veracity of the
total process. A Scotsman, Mr Kenny Richey, on death row in America even came within
an hour of execution with the pressure to admit guilt and live ("Best Chance for
death row Scot", BBC News Online 10/5/2003, available in Extra Appendices). Lauding
a system that behaves like this is condoning the evil. It isn't a matter of pragmatism
over theory, it is a matter of honesty over deception.
Perhaps the most obvious example
of opinion being valued over fact is the appeal process as shown in the first appeal
by Sally Clark. Without knowing the jurors' deliberations, merely a guilty verdict,
the three judges had to decide whether the original jury would have had a different
opinion if Sir Roy Meadow hadn't given the faulty prosecution evidence. Doesn't such
crystal-ball gazing discredit the present appeal procedure? Indeed there is much
about judicial methodology that suggests its DNA would show closer kinship to astrology
than to science. Doesn't it help show why it is so difficult to overturn an initial
faulty verdict? I haven't found one comment on that particular appeal decision that
is complimentary, such was the quality of the judges' reasoning (see Appendix 3B).
In
the trial of Mrs Cannings the defence had elicited specific testimony from BOTH defence
and prosecution expert witnesses that Mrs Cannings had no behavioural disorder, yet
Mrs Justice Hallett in her sentencing statement said "But I have no doubt that for
a woman like you to have committed these terrible acts of suffocating your own babies
there must have been something seriously wrong with you.". Does the judge believe
her personal opinion should override the trial evidence of medical experts? If not,
there is of course only one logical consequence of her statement, Mrs Cannings DIDN'T
commit these terrible acts. Science can be beautifully simple and clear. Judges really
need to embrace it.
The most obvious drawback to an opinion is that it is derived
from the sum total of what we know. When you realise that what each of us doesn't
know is infinite in comparison, it makes a human opinion a very poor second to an
unambiguous fact. It is an awareness of what we don't know that measures wisdom.
Appendix 7 - Unscientific Legal Procedures.
One legal procedure that contradicts
scientific rules is jury selection because of the ability of prosecutors and defendants
to interfere with the selection. No scientist would be allowed to help get the result
they want by tampering with the dice. While it is fair to the participants from a
combatant point of view, since both sides have the same opportunities, it scientifically
decreases the veracity of the finding. Indeed the whole approach of jury deliberation
is a scientific flaw. If twelve people are selected to give a balanced independent
view of the evidence, that decision should be made by them immediately after the
judge's summing up and independently of knowing what their colleagues are thinking.
Instead of that the judicial process deliberately sends them away to discuss it amongst
themselves and to agree on a consensus verdict. Highly opinionated and obstinate
people aren't going to change their own minds, so the pressure is on more reasonable
folk to give in to them. It is the only way to be allowed to go home. This essentially
nullifies the benefit of the independent opinions and the effect is to make the value
of the outcome scientifically unintelligible. In scientific statistical terms the
tails of the distribution of opinion that should be the first to be ignored actually
dominate the process; that translates to "the tail wagging the dog", the very same
error that happens with expert witnesses. In Mrs Cannings trial the verdict was unanimous
and the jurors' deliberations lasted over nine hours. Now if all twelve thought she
was guilty when they entered the jury room, what were they doing after the first
ten minutes?
A dabble with a little mathematics helps to discipline human thinking.
Where a case depends solely on circumstantial evidence, if the evidence is truly
evenly balanced, the opinion amounts to just a guess. Each person's chance of being
right is then 50% and the striking thing is that a jury of twelve would fail to give
a unanimous verdict 99.95% of the time. It only reduces a little, to 96%, when the
judge accepts a 10-2 or better verdict. If there is some room for considered assessment
and we say a juror's opinion is right 2 times out of 3, a hung jury would still occur
99% of the time. Even if a juror's opinion were right 4 times out of 5, the jury
would still be hung 93%, but if a 10-2 verdict is accepted, it drops to 44%. While
hung juries do occur, they happen far more rarely than this, so either each person's
independent opinion is right nearly all the time (which would make for a very agreeable
world, but doesn't match with empirical evidence) or many jurors must be changing
their vote to achieve the required collective agreement. If in practice agreed verdicts
are achieved in 90% of the cases involving only circumstantial evidence, if each
juror's opinion is right 4 times out of 5, on average four people must change their
vote for unanimity and two for a 10-2 or better verdict. If each juror's opinion
is only right 2 times out of 3, all five would have to change their vote to achieve
unanimity. Clearly this pressure to reach an agreed verdict greatly reduces its authenticity.
Information
in a case is also deliberately tampered with by such court rules as previous convictions
must be kept from a jury. While hiding past convictions has the scientific quality
of preserving independence, tinkering with basic rules only creates other anomalies
and the distinct bias this creates against a "good" person is very clearly demonstrated
in Mrs Cannings case. My legal knowledge is very limited, but I believe there are
several other well-intentioned rules about excluding evidence and my guess is they
too wouldn't stand up to scientific scrutiny.
Another such tampering by "human opinion"
with scientific fact, arises with the double jeopardy rule, referred to earlier.
While it helps possibly guilty people, it does nothing for innocent ones. It might
even act against innocent ones in forcing prosecution cases to be extra belligerent
since they only have one shot. An even clearer bias against good people resulting
from the "double jeopardy" rule is demonstrated by the fact that (1) where further
prosecution evidence is discovered after someone is acquitted, a re-trial isn't allowed
at all, which is to the benefit of a "crook", whereas (2) as illustrated by Mrs Sally
Clark's first appeal, if further defence evidence is discovered after someone is
found guilty, a re-trial isn't readily allowed, which disadvantages a "good" person.
The
secrecy of a jury's deliberations is also a questionable part of legal methodology
if the aim is to get as honest a result as possible. It certainly limits the ability
of an appeal court to make an informed decision and analysts to identify flaws in
the process. The defendant has far more at stake than a juror, so protecting a juror's
position at the expense of the defendant's is not a soundly weighted argument. A
vote by the jurors without consultation amongst themselves would give a scientifically
sounder result and if that is secret, as has been deemed best in democratic elections,
it could lessen concern about interference by unscrupulous defendants.
The miscarriages
of justice I've referred to would be less likely to occur if all the cards are put
on the table, but the jury directive is tightened to "beyond any doubt". It is not
a very intelligent society that reveres a system that so readily convicts innocent
people and at the same time assists perennial crooks to escape justice.
Appendix 8 - Sixteen Years In Jail For A Crime He Did Not Commit .
The evidence against
Michael Shirley was that he owned a brand of shoes like the killers, he was in Portsmouth
when the offence took place there and he had the same blood type as the killer and
so did ten million other British men. Incredibly the judicial system allows that
to be sufficient information to find someone guilty under the guise of circumstantial
evidence. Added to that affront, he served sixteen years in jail, one more than he
would have if he had been willing to admit his guilt, despite the DNA evidence that
established his innocence being known three years before his release. Using the same
slack way courts interpret circumstantial evidence, that could well be interpreted
as a deliberate attempt to break his spirit and cover up the system's failings. The
website www.innocence.org.uk identifies many other such results from a system devoid
of science and tainted with medieval practices.
Appendix 9 - Vested Interests and Some Simple Solutions .
My scientific background
of course makes me uncomfortable with the concepts of conspiracy theory. It is the
realm of manipulation and innuendo, rather than objective argument. However, such
methods, like painting innocuous acts with a sinister brush, are regularly used by
prosecutors and regularly permitted by the judiciary, so none of those should object.
Why did the judge at the sentencing of Mrs Cannings question the politically sensitive
subject of mandatory sentencing, but fail to question the equally obvious and more
fundamental subject of whether the verdict of her court was sound? It could be a
case of St.Luke 6.41, but it would be more serious if Mrs Cannings' anguish is increased
because she is a pawn in a battle between government and the judiciary. There must
be some explanation why Mrs Cannings still languishes in jail despite the comments
from all those closely involved - ranging from not believing the verdict to the judges
own statement that she doesn't need to be in jail. Sentencing was in April 2002 and
her trauma clearly started long before then. With an appeal only recently scheduled,
the process, including the Criminal Cases Review Commission (CCRC) process, is clearly
failing the victims of the judiciary's methods.
The CCRC was set up in 1997 to review
cases where people claimed to have been wrongly convicted. Several people have had
retrials as a result of this and a number of those were exonerated (see www.innocence.org.uk).
That the Sally Clark and Angela Cannings convictions have arisen since 1997 shows
that it hasn't changed the fundamental, underlying problems of the judicial system.
The CCRC looks to be only more of the same and a more truly progressive move would
be the appointment of an ombudsman who is totally independent of legal paraphernalia
and who can order a QUICK retrial if the jury's verdict is not compatible with ALL
the evidence. Scientists understand exactly why it is impossible to pull oneself
up by one's bootlaces and to get momentum for change, the judiciary needs the external
pressure of accountability from outside its own sphere of control.
Potential mistakes
occurring wouldn't be as bad if there were a quick mechanism for redressing, but
it is a slow drawn out procedure getting to trial and an even slower process to get
a re-trial. The drain on the defendant's resources - psychological and financial
- must be quite enormous. A quicker trial with more readily available re-trials would
be much more socially considerate, especially as the present long drawn out affair
doesn't provide better quality results. Indeed, short, sharp trials would encourage
everyone to keep their eye on the ball and avoid the soft evidence sullying the hard.
Appendix 10 - Synopsis of the Errors in the Justice System Identified Above.
The
unscientific procedures identified include
1. Weighting of evidence, where the strength
of fully factual information is overridden by evidence that has an element of doubt.
2.
Bias, and in every instance against "good people",
2a. The "double jeopardy" rule,
since if further evidence becomes available, a "bad" person cannot suffer a re-trial
but as demonstrated in Sally Clark's first appeal hearing, a "good" person cannot
readily benefit by getting a re-trial.
2b. The limiting of evidence of past convictions,
as specifically identified in the case of Mrs Angela Cannings.
2c. By choosing expert
witnesses for their given viewpoint and ignoring the significance of that.
2d. Possibly
in the use of circumstantial evidence, particularly the inventive kind, more as a
prosecution device than a defence device.
2e. Plea bargaining.
3. Interference in jury
selection.
4. Interference by limiting evidence and the inconsistency of rules that
hide certain information.
5. Interference of the "double jeopardy" rule.
6. The very
process of jurors being forced to modify their own position and arrive at a common
decision which has far less scientific value than twelve independent conclusions.
7.
The use of secrecy in those jury deliberations. The defendant has far more at stake
than a juror, so protecting a juror's position at the expense of the defendant's
is not a soundly weighted argument.
8. Ignoring how important CONSISTENCY of evidence
is before you can say something is proven.
9. Failure to recognise the EXTRA seriousness
of convicting an innocent person.
10. A medical expert lecturing judges on how to
interpret medical evidence and then giving evidence before judges in particular cases.
11.
The portrayal of opinion as fact. It is this tendency of many lawyers that reveals
the lack of training the profession has in scientific reasoning. Another particularly
obvious example is the nonsense of an appeal court assessing whether a fault in prosecution
evidence would have changed a jury's verdict when they have no information whatsoever
on the jurors' deliberations.
12. The pressure for a convicted person to admit their
guilt in exchange for leniency such as early parole or even commuting a death sentence.
This surely shows that medieval practices still pervade the system.