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Evan Whitton
3 June, 2008  
The defence lawyer's challenge

Whitton-at-Large. Out and about at the MCA and a slo-mo cartoon on “significant reactions” to the O.J. Simpson case … Does it matter that judges sleep during trials? For the most part, probably not. They are supposed to be “headpieces filled with straw” ... Sydney Pollack’s Three Days of the Condor is among the foremost of his many monuments


To the Museum of Contemporary Art in The Rocks, Sydney, in search of a bit of kulchur.

imageAs you may imagine, the higher tosh is heavily represented, leavened with some knockout stuff, e.g. Chris Burden’s 1979 The Reason [I’d say the excuse] for the Neutron Bomb. It has 50,000 red match heads on 50,000 nickel coins. The ensemble represents 50,000 Soviet tanks.

In the lower tosh bracket, I fear, was a mercifully brief slow motion cartoon on the O.J. Simpson matter. It purported to reveal significant reactions, e.g. lawyer Johnnie Cochran (1937-2005) snuggling up to Simpson (seen here) as a court official drones the verdicts.

The premise is false; Simpson’s people had a line into the jury and knew what the verdict would be. And if you are meditating on the case, you might as well say something. For example, lawyer-reporter Jeffrey Toobin in The Run of His Life (Touchstone 1997):

“Of course … Cochran knew from the start what any reasonably attentive student of the murders of Nicole Brown Simpson and Ronald Lyle Goldman could see: that O.J. was guilty of killing them. [Cochran had] the most common quandary of the criminal defense attorney: what to do about a guilty client?”

Common law ethics insist that the challenge for defence lawyers is to get their clients off, including the 99 in 100 who are guilty. The quandary is thus to choose from competing lies.

imageToobin (pic) says Cochran and others on the Simpson team met the challenge by inventing …

“a separate narrative, an alternative reality, for the events of June 12, 1994. This fictional version … posited that Simpson was the victim of a wide-ranging conspiracy of racist law enforcement officials.”

Cochran, who got $US500,000 for perverting justice on behalf of a murderer, was nailed by Toobin, by Seinfeld as the shsyter, Jackie Chiles, and by Simpson himself at Cochran’s funeral. He said:

“I thought he represented … the best in what our adversarial legal system was about.”

Rugby notes

imageIf the fat, non-tackling NSW fly-half, Mr Curtly Beale, is the answer, what is the question?

And now that a New Zealander, Mr Robert (Robbie) Deans, 48 (pic), is to coach the dear old Bandicoots, perhaps we should take whatever odds we can get and back them to win the 2011 World Cup.

Sophistry 101

High Court judges are again stroking their learned (?) beards over questions raised by a sleepy beak:

(1) Can an accused get a fair trial if the judge has a snooze?

(2) Do kipping judges diminish public confidence in the administration of justice?

It’s rubbish, innit? A fair go all round requires a search for the truth. The short answers are thus:

(1) The system does not search for the truth; an accused cannot get a fair trial whether the judge is asleep or awake.

(2) Dozing beaks may diminish public confidence in the administration of “justice”, but only from eight per cent to zero.

Germane to the answers are that 92 per cent of 7,000 readers of The [Sydney] Daily Telegraph believed in July 2004 that the system is unfair, and 78 per cent believed it favours criminals.

However, we can’t expect High Court judges on a lousy $7,254.42 a week to know why the British system itself is the problem: the law schools they attended don’t teach much legal history, possibly because the academics are too busy teaching Sophistry 101.

imageSo, in a spirit of deep humility, respect and helpfulness, here are a few things the judges and lawyers arguing the case may find useful.

Mad as it may seem, the ancient Gyppoes knew more about justice than our judges, trial lawyers and academics. From about 2700 BC, Maat, their Goddess of Justice (seen here), had a feather in her cap. It symbolised justice, truth and righteousness (morality), they key word being “truth”.

Trial lawyers have been, as they say, economical with the truth at least since the invention of Sophistry 101 in the fifth century BC.

For a fee, Sophists taught Athenian lawyers how to “make the weaker argument appear the stronger”, and were rightly monstered by Socrates for moral bankruptcy, and by Plato for being uninterested in truth and justice.

British judges who were either bent or stupid made the common law wonderfully convenient for trial lawyers. Thus:

(1) In the 13th century, they discovered an important truth: that truth does not matter.

(2) They gave trial lawyers control of criminal evidence while no one was looking during the Napoleonic Wars.

(3) They invented rules of evidence which make it a snip for defence lawyers to get clients off, including murderers and white collar organised criminals.

The nice thing about (2) is that it gives trial lawyers control of the process, and that gives them control of the money, and that gives them the option of comfortably retiring to sit on a bench. As O.J. might say, that is the best of our adversary system.

Sitting on a bench is thought by some, if not by Telegraph readers, to provide a modicum of status, but my distinguished colleague, Tulkinghorn, noted that in May 2006 the Ontario Chief Justice’s Advisory Committee on Criminal Trials defined the function of judges thus:

“Central to the adversary system is the concept that it is the [trial] lawyers who prepare and present the case … Trial judges would prefer to be, and should be, passive observers … there is no need for the trial judge to become involved in trial management.”

imageSleeping is fairly passive. So was Rufus Isaacs, Lord Reading, Lord Chief Justice 1913-21, (pic). He dealt with his correspondence, much of it no doubt with his stockbroker: he had been up to his learned armpits in the 1912 Marconi insider trading ramp.

In 1914, Lord Reading took an interest long enough to invent the Christie discretion, which would have been useful if the law ever caught up with him: it gives judges a power to conceal at whim any or all evidence from jurors.

As the Ontario people said, an adversary trial is essentially a matter for the lawyers, the witnesses and the jurors.

The judge should of course be awake when he is concealing evidence, and when he is telling the jurors to go out and decide what’s left of the evidence means and when he is saying, No, he can’t tell them what reasonable doubt means.

Otherwise they might as well be cigar store Indians, or the type described by Eliot, which I have previously quoted in another context.

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw

Public confidence in the system will be restored when trials are fair to everyone, including the community. That will happen when senior judges and lawyers face reality and advise the Ruddman to get rid of the corrupt British system along with the monarch.

Law schools can do their bit – and cleanse the slate – by teaching a bit of legal history and dropping Sophistry 101.

Three Days of the Condor

imageThis 1975 film, by Sydney Pollack (July 1, 1934-May 26, 2008, pic), reminds us that the US and its black bag people at the CIA keep on doing the same thing. Why? Mainly because the War Party wants the money, and doesn’t mind killing a lot of people to get it.

The plot of the film is that the CIA was running drugs out of Laos – sounds like the guy, Ted Shackley, who told ASIO to do something about Whitlam – and war-gaming a plan to invade an Arab country and take over its oil. A group of low-level CIA analysts got a glimmering and were wiped out by a CIA assassination team.

In the film, Robert Redford is an analyst, code-named Condor, who survived the slaughter; Cliff Robertson a CIA operative, and Max von Sydow a kindly assassin.

Lisa Pease noted some dialogue in a piece on Pollack (Consortium News, May 27).

Redford: Do we have plans to invade the Middle East?

Robertson: No. Absolutely not. We have games. That’s all. We play games. What if? How many men? What would it take? Is there a cheaper way to destabilize a regime? That’s what we’re paid to do.

Nothing changes. Mr Cheney and Mr Bush will be hoping that the CIA, having done its war games on Iran, can come up with a colourable excuse to attack that country with missiles before the November elections.

Three Days of the Condor is thus among the foremost of Sydney Pollack’s many monuments. The man for the mot juste, George Clooney, who acted with him in Michael Clayton, said:

“Sydney made the world a little better, movies a little better, and even dinner a little better … He’ll be missed terribly.”