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Evan Whitton
19 September, 2006  
Rights before justice

The law insists it is proper for judges and counsel to mislead the jury … The deep well of lawyer unhappiness … A clue as to why the dear old Bandicoots keep getting flogged

A piece on adversarial ethics (September 7) noted that Professor David Luban said the system’s “cluster of values” promoted a “larger social good” which was “supposed” to justify immoral advocacy. He said “defense of rights” is one of those values.

Considerations of space (and fear of causing the eye-glaze) stayed examination of that proposition. I hasten to do so now.

That throwback to medieval times, George W. Bush, has mounted a sustained assault on basic rights for anyone suspected of naughtiness. With a craven Congress, he needs only one more vote on the Supreme Court to wipe out the rights, and Justice Anthony Kennedy, 70, has a heart problem. The 3 a.m. knock on the door beckons. See Roger Fitch.

And where George goes, can Jackie and Phil be far behind? Those with any sense of justice will applaud lawyers and judges desperately upholding basic legal rights.

imageThat said, the problem is that common lawyers tend to put rights before justice. Judge Harold Rothwax (seen here), of the New York Supreme Court, noted the mindset in Guilty: The Collapse of Criminal Justice (Random House, 1996).

Detectives following a suspect saw him rob a Belgian tourist in Manhattan. The tourist gave them his name, address, and phone number before flying back to Belgium, but refused to return to New York for the trial.

The defense lawyer asked Judge Rothwax to give the jury a “missing witness charge”, i.e. to instruct them that failure to produce the witness would permit them to infer that, if called, the witness would not support the district attorney’s case.

During argument in the absence of the jury, the defense lawyer admitted that she had telephoned the witness in Belgium; and that he had confirmed being robbed by the defendant.

Judge Rothwax asked the lawyer: “Doesn’t your own statement belie the inference you’re seeking?”

She said: “It does, but my client is entitled to it.”

Judge Rothwax concluded: “When it is proper to say in a court of law that a defendant is entitled to mislead a jury, you have to wonder.”

Wonder what? The implications are that the system obliges judges to lie to the jury, and obliges prosecutor and defence lawyer, by their silence, to participate in the lie. Such lies are plainly unfair to the victim, the jury, and the public.

It is clear that putting rights before justice does not necessarily promote a “larger social good” which justifies immoral advocacy. Perhaps judges and lawyers should take the oath to tell the truth.

* * *

A piece by Mr Alan Mascarenhas in the SMH of September 7 has some alarming statistics:

  • In Australia, the insurer LawCover reported a disturbingly high number of lawyers with depression, stress, alcohol dependency, and gambling addiction.
  • This year, a survey of 7,000 professionals by Beaton Consulting found lawyers were the second unhappiest [behind patent attorneys] of all occupations.
  • Lawyers in the US had the highest rate of depression of more than 100 occupations in a 1990 study by Johns Hopkins University, and were almost four times as likely to experience it as the general population.

    The figures raise an important question. If lawyers did not have to lie and pervert justice, but got less money, would they be less, or more, unhappy, depressed, drunk, aleatory?

    * * *

    I know it’s old-fashioned to admit it, but I much preferred Rugby a quinze when it was a minor cult watched mainly by a few professional types.

    Brisbane judges and lawyers had the right idea. When a touring team played a Wednesday match, they downed tools and trundled out to Ballymore for a splendid lunch of mud crab and bubbly to lessen the pain of viewing the nonsense on the pitch.

    Since the (London) Rugby Writers’ Club bills me as Rugby correspondent for this elegant journal, I suppose I should write a par or two for the look of it.

    The dear old Bandicoots, aka Wobblies, wonder why they keep getting flogged. Here’s a clue. The captain and scrum-half, George Gregan, has many admirable qualities, but passing the ball with celerity off the ground has never been one of them. Hence the domino effect.

    imageHere’s another. Sir Anthony O’Reilly, 70 (pic), onetime British Isles wing and now proprietor of England’s best newspaper, The Independent, famously said his 1955 outside centre in South Africa, Phil Davies, “threw the ball away like a lolly paper, but if you could catch it, there was nothing in front of you but the turnstiles”.

    That rather confirms the traditional – and logical – centre pairing: the crash ball guy inside and the creative guy outside, e.g. Jack Matthews/Bleddyn Williams (Wales), Ryk van Schoor/Tjol Lategan (South Africa), Mick Hawker/Mick O’Connor (Australia).

    A distinguished former international, a barrister, agrees, and supplies a further example from Rugby a treize: Harry Wells/Reg Gasnier.

    But the Bandies play the creative guy, Matthew Giteau, inside, and the Kamikaze guy, Sterling Mortlock, outside. And that is where, inevitably, it dies.


Reader Comments

Posted by: Anonymous
Date: October 8, 2006, 4:16 pm

Rugby Union is not the game it was.It has got into the hands of full time class less bureaucrats who don't understand or respect the ethos of the game.Its loss of its amateur club connections is part of the problem as is the employees of the various unions who now run the game for themselves not for the diminishing Rugby family.I 'll think I'll spend my free time playing golf and reading